Revised Penal Code Book 1 by Reyes

CRIMINAL The so-called common law
crimes, known in the United

States and England as the body of
LAW principles, usages and rules of
action, which do not rest for their
authority upon any express and
Criminal Law, defined.
positive declaration of the will of
Criminal law is that branch the legislature, are not recognized
or division of law which defines in this country. Unless there be a
crimes, treats of their nature, and particular provision in the penal
provides for their punishment. (12 code or special penal law that
Cyc. 129) defines and punishes the act, even
if it be socially or morally wrong,
Crime, defined. no criminal liability is incurred by
Crime is an act committed its commission. (See U.S. vs.
or omitted in violation of a public Taylor, 28 Phil. 599, 604)
law forbidding or commanding it.
Court decisions are not
(I Bouvier's Law Dictionary, sources of criminal law, because
Rawle's Third Revision, 729)
they merely explain the meaning
of, and apply, the law as enacted
Sources of Philippine by the legislative branch of the
Criminal Law. government.
1. The Revised Penal
Code (Act No. 3815) l
and its amendments. CRIMINAL LAW IN

2. Special Penal Laws GENERAL
passed by the Limitations to Enact Criminal
Philippine Legislation
Commission,
Philippine Assembly, Power to define and
Philippine punish crimes.
Legislature, National
Assembly, the The State has the
Congress of the authority, under its police power,
Philippines, and the to define and punish crimes and
Batasang Pambansa. to lay down the rules of criminal
procedure. States, as a part of
3. Penal Presidential their police power, have a large
Decrees issued during measure of discretion in
Martial Law. creating and denning criminal
offenses. (People vs. Santiago, 43
No common law crimes in Phil.
the Philippines. 120, 124)
The right of prosecution and punishes such an
and punishment for a crime is one act;
of the attributes that by a natural
law belongs to the sovereign (2) aggravates a crime, or
power instinctively charged by the makes it greater than
common will of the members of it was, when
society to look after, guard and committed;
defend the interests of the (3) changes the
community, the individual and punishment and
social rights and the liberties of inflicts a greater
every citizen and the guaranty of punishment than the
the exercise of his rights. (U.S. vs. law annexed to the
Pablo, 35 Phil. 94, 100) crime when
committed;
Limitations on the power
(4) alters the legal rules
of the lawmaking body to
of evidence, and
enact penal legislation. authorizes conviction
The Bill of Rights of the upon less or different
1987 Constitution imposes the testimony than the
following limitations: law required at the
time of the
1. No ex post facto law
commission of the
or bill of attainder
offense;
shall be enacted. (Art.
Ill, Sec. 22)
2
2. No person shall be CRIMINAL LAW IN
held to answer for a GENERAL
criminal offense Constitutional Rights of the
without due process Accused
of law. (Art. Ill, Sec.
14[1]) (5) assumes to regulate
The first limitation civil rights and
prohibits the passage of remedies only, in
retroactive laws which are effect imposes penalty
prejudicial to the accused. or deprivation of a
right for something
An ex post facto law is one which when done was
which: lawful; and
(1) makes criminal an act (6) deprives a person
done before the accused of a crime
passage of the law some lawful
and which was protection to which he
innocent when done, has become entitled,
such as the protection ten years, imposed by
of a former conviction Presidential Decree
or acquittal, or a No. 818, applies only
proclamation of to swindling by means
amnesty. (In re: Kay of issuing bouncing
Villegas Kami, Inc., checks committed on
35 SCRA 429, 431) or after October 22,
1985. That increased
Congress is also prohibited
penalty does not apply
from passing an act which would
to estafa committed on
inflict punishment without
October 16, 1974
judicial trial, for that would
because it would make
constitute a bill of attainder.
the decree an ex post
A bill of facto law. Its
attainder is a retroactive application
legislative act which is prohibited by
inflicts punishment Articles 21 and 22 of
without trial. Its the Revised Penal
essence is the Code and Section 12,
substitution of a Article IV (now Sec.
legislative act for a 22, Art. HI, of the
judicial determination 1987 Constitution).
of guilt. (People vs. (People vs. Villaraza,
Ferrer, 48 SCRA 382, 81 SCRA 95, 97)
395)
The second limitation
Example: requires that criminal laws must
be of general application and must
Congress passes clearly define the acts and
a law which authorizes omissions punished as crimes.
the arrest and
imprisonment of Constitutional rights of
communists without the accused.
the benefit of a judicial
Article III, Bill of Rights, of
trial.
the 1987 Constitution provides
To give a law retroactive for the following rights:
application to the CRIMINAL
prejudice of the accused LAW IN
is to make it an ex post GENERAL
facto law. Constitutional
Rights of the
The penalty of Accused
prision mayor
medium, or eight
1. All persons shall have
years and one day to the right to a speedy
3
disposition of their him, to have speedy,
cases before all impartial, and public
judicial, quasi- trial, to meet the
judicial, or witnesses face to face,
administrative bodies. and to have
(Sec. 16) compulsory process to
secure the attendance
2. No person shall be
of witnesses and the
held to answer for a
production of
criminal offense
evidence in his behalf.
without due process of
However, after
law. (Sec. 14[1])
arraignment, trial
3. All persons, except may proceed
those charged with notwithstanding the
offenses punishable absence of the accused
by reclusion perpetua provided that he has
when evidence of guilt been duly notified and
is strong, shall, before his failure to appear is
conviction, be bailable unjustifiable. (Sec.
by sufficient sureties, 14[2])
or be released on
recognizance as may
compelled to be a
be provided by law.
witness against
The right to bail himself. (Sec. 17)
shall not be impaired
Any person
even when the privilege
under investigation for
of the writ of habeas
the commission of an
corpus is suspended.
offense shall have the
Excessive bail shall right to be informed of
not be required. his right to remain
(Sec. 13) silent and to have
competent and
4. In all criminal independent counsel
prosecutions, the preferably of his own
accused shall be choice.
presumed innocent
until the contrary is If the person
proved, and shall cannot afford the services
enjoy the right to be of counsel, he must be
heard by himself and provided with one.
counsel, to be
These rights cannot
informed of the
be waived except in
nature and cause of
writing and in the
the accusation against
presence of counsel. (Sec. for the same act. (Sec.
12[1]) 21)
No torture, 8. Free access to the
force, violence; threat, courts and quasi-
intimidation, or any judicial bodies and
other means which adequate legal
vitiate the free will assistance shall not be
shall be used against denied to any person
him. Secret detention by reason of poverty.
places, solitary, (Sec. 11)
incommunicado,
Statutory rights of the
4
accused.
CRIMINAL LAW IN
GENERAL Section 1, Rule 115, of the
Statutory Rights of the Accused Revised Rules on Criminal
Procedure provides that in all
criminal prosecutions, the accused
or other similar forms of detention
shall be entitled:
are prohibited. (Sec
12[2]) 1. To be presumed
innocent until the
Any confession
contrary is proved
or admission obtained
beyond reasonable
in violation of this or
doubt.
Section 17 hereof shall
be inadmissible in 2. To be informed of the
evidence against him. nature and cause of
(Sec. 12[3]) the accusation against
him.
6. Excessive fines shall
not be imposed, nor 3. To be present and
cruel, degrading or defend in person and
inhuman punishment by counsel at every
inflicted. (Sec. 19[1]) stage of the
proceedings, from
arraignment to
twice put in jeopardy
promulgation of the
of punishment for the
judgment, x x x
same offense. If an act
is punished by a law 4. To testify as a witness
and an ordinance, in his own behalf but
conviction or acquittal subject to cross-
under either shall examination on
constitute a bar to matters covered by
another prosecution direct examination.
His silence shall not in
5
any manner prejudice
him.
5. To be exempt from
being compelled to be
a witness against
himself.
6. To confront and
cross-examine the
witnesses against him
at the trial, x x x
CRIMINAL LAW IN GENERAL
Characteristics of Criminal Law
7. To have compulsory process issued to secure the attendance of

witnesses and production of other evidence in his behalf.
8. To have a speedy, impartial and public trial.
9. To appeal in all cases allowed and in the manner prescribed by
law.
Rights of the accused which may be waived and rights

which may not be waived.
A right which may be waived is the right of the accused to confrontation
and cross-examination. A right which may not be waived is the right of the
accused to be informed of the nature and cause of the accusation against him.
The reason or principle underlying the difference between rights which
may be waived and rights which may not be waived is that those rights which
may be waived are personal, while those rights which may not be waived
involve public interest which may be affected. (2 Moran, Rules of Court, 1952
Edition, 748)
Characteristics of criminal law.

Criminal law has three main characteristics: (1) general, (2) territorial,
and (3) prospective.
I. GENERAL, in that criminal law is binding on all persons who live or
sojourn in Philippine territory. (Art. 14, new Civil Code)
In a case where the accused contended that being an American citizen,
he cannot be prosecuted for, much less convicted of, the crime of illegal
possession of firearms, because it is a constitutional right of the citizens of the
United States of America "to keep and bear arms" without any need of
applying and securing a government license therefor, the Court of Appeals
held:
"The Philippines is a sovereign state with the obligation and
the right of every government to uphold its laws and maintain
order within its domain, and with the general jurisdiction to
punish persons for offenses committed within its territory,
regardless of the nationality of the offender. (Salonga and Yap,
Public International Law, p. 169) No foreigner enjoys in this
country extra-territorial right to be exempted from its laws and
jurisdiction, with the exception of heads of states and diplomatic
7
representatives who, by virtue of the customary law of nations,

are not subject to the Philippine territorial jurisdiction." (People
vs. Galacgac, C.A., 54 O.G. 1027)
As a general rule, the jurisdiction of the civil courts is not

affected by the military character of the accused.
U.S. vs. Sweet
(1 Phil. 18)
Facts: Sweet was an employee of the U.S. Army in the Philippines.

He assaulted a prisoner of war for which he was charged with the crime
of physical injuries. Sweet interposed the defense that the fact that he
was an employee of the U.S. military authorities deprived the court of
the jurisdiction to try and punish him.
Held: The case is open to the application of the general principle
that the jurisdiction of the civil tribunals is unaffected by the military or
other special character of the person brought before them for trial,
unless controlled by express legislation to the contrary.
Civil courts have concurrent jurisdiction with general

courtsmartial over soldiers of the Armed Forces of the
Philippines.
Civil courts have jurisdiction over murder cases committed by persons
subject to military law. The civil courts have concurrent jurisdiction with the
military courts or general courts-martial over soldiers of the Armed Forces of
the Philippines.
Civil courts have jurisdiction over the offense of malversation
(Art. 217) committed by an army finance officer. (People vs. Livara, G.R. No.
L-6021, April 20, 1954)
Even in times of war, the civil courts have concurrent jurisdiction with
the military courts or general courts-martial over soldiers of the Philippine
Army, provided that in the place of the commission of the crime no hostilities
are in progress and civil courts are functioning.
(Valdez vs. Lucero, 76 Phil. 356)
The Revised Penal Code or other penal law is not

applicable when the military court takes cognizance of
the case.
8
When the military court takes cognizance of the case involving a person
subject to military law, the Articles of War apply, not the Revised Penal Code
or other penal law.
"By their acceptance of appointments as officers in the Bolo Area from
the General Headquarters of the 6th Military District, the accused, who were
civilians at the outbreak of the war, became members of the Philippine Army
amenable to the Articles of War."
(Ruffy, et al. vs. Chief of Staff, et al., 75 Phil. 875) Jurisdiction of
military courts.
Section 1 of Rep. Act No. 7055 reads in full:
"Section 1. Members of the Armed Forces of the Philippines and

other persons subject to military law, including members of the Citizens
Armed Forces Geographical Units, who commit crimes or offenses
penalized under the Revised Penal Code, other special penal laws, or
local government ordinances, regardless of whether or not civilians are
co-accused, victims, or offended parties which may be natural or
juridical persons, shall be tried by the proper civil court, except when
the offense, as determined before arraignment by the civil court, is
service-connected, in which case the offense shall be tried by court-
martial: Provided,
That the President of the Philippines may, in the interest of justice,
order or direct at any time before arraignment that any such crimes or
offenses be tried by the proper civil courts.
"As used in this Section, service-connected crimes or offenses shall
be limited to those denned in Articles 54 to 70, Articles 72 to 92, and
Articles 95 to 97 of Commonwealth Act No. 408, as amended.
"In imposing the penalty for such crimes or offenses, the court-
martial may take into consideration the penalty prescribed therefor in
the Revised Penal Code, other special laws, or local government
ordinances."
The second paragraph of the above provision explicitly specifies what
are considered "service-connected crimes or offenses" under Commonwealth
Act No. 408 (CA 408), as amended, also known as the Articles of War, to wit:
those under Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of
Commonwealth Act No. 408, as amended.
9
Rep. Act No. 7055 did not divest the military courts of jurisdiction to try
cases involving violations of Articles 54 to 70, Articles 72 to 92 and Articles 95
to 97 of the Articles of War as these are considered "service-connected crimes
or offenses." In fact, it mandates that these shall be tried by the court-martial.
In view of the clear mandate of Rep. Act No. 7055, the Regional Trial
Court cannot divest the General Court-Martial of its jurisdiction over those
charged with violations of Articles 63 (Disrespect Toward the President etc.),
64 (Disrespect Toward Superior Officer), 67 (Mutiny or Sedition), 96
(Conduct Unbecoming an Officer and a Gentleman) and 97 (General Article)
of the Articles of War, as these are specifically included as "service-connected
offenses or crimes" under Section 1 thereof. Pursuant to the same provision of
law, the military courts have jurisdiction over these crimes or offenses.
(Navales, et. al. vs. Abaya, et. al, G.R. Nos. 162318-162341, Oct. 25, 2004)
The prosecution of an accused before a court-martial is a

bar to another prosecution of the accused for the same
offense.
A court-martial is a court, and the prosecution of an accused before it is
a criminal, not an administrative case, and therefore it would be, under
certain conditions, a bar to another prosecution of the accused for the same
offense, because the latter would place the
accused in double jeopardy. (Marcos and Concordia vs. Chief of Staff, AFP,
89 Phil. 246)
Offenders accused of war crimes are triable by military

commission.
The petitioner is a Filipino citizen though of a Japanese father, and
associating himself with Japan in the war against the United States of America
and the Philippines, committed atrocities against unarmed and non-
combatant Filipino civilians and looted Filipino property. He is, indeed, a war
criminal subject to the jurisdiction of the military commission. (Cantos vs.
Styer, 76 Phil. 748)
Executive Order No. 68 of the President of the Philippines establishing a
National War Crimes Office and prescribing rules and regulations governing
the trial of war criminals is valid and constitutional, the President of the
Philippines having acted in conformity with the generally accepted principles
and policies of international law which are part of our Constitution. The
promulgation of said executive order is an exercise by the President of his
powers as Commander-in-Chief of all our armed forces.
10
"War is not ended simply because hostilities have ceased. After

cessation of armed hostilities, incidents of war may remain pending which
should be disposed of as in time of war." A military commission "has
jurisdiction so long as a technical state of war continues." This includes the
period of an armistice, or military occupation, up to
the effective date of a treaty of peace. (Kuroda vs. Jalandoni, et al.,
83 Phil. 171; Cowles, Trial of War Criminals by Military Tribunals,
American Bar Association, June, 1944)
Exceptions to the general application of Criminal Law.

There are cases where our Criminal Law does not apply even if the
crime is committed by a person residing or sojourning in the Philippines.
These constitute the exceptions.
The opening sentence of Article 2 of the Revised Penal Code says that
the provisions of this Code shall be enforced within the Philippine
Archipelago, "except as provided in the treaties and laws of preferential
application."
Article 14 of the new Civil Code provides that penal laws and those of
public security and safety shall be obligatory upon all who live or sojourn in
Philippine territory, subject to the principles of public international law and to
treaty stipulations.
Treaties or treaty stipulations.

An example of a treaty or treaty stipulation, as an exception to the
general application of our criminal law, is the Bases Agreement entered into
by and between the Republic of the Philippines and the United States of
America on March 14, 1947 (which expired on 16
September 1991), stipulating that "(t)he Philippines consents that the United
States have the right to exercise jurisdiction over the following offenses:
(a) Any offense committed by any person within any base, except
where the offender and the offended party are both Philippine
citizens (not members of the armed forces of the
United States on active duty) or the offense is against the security
of the Philippines;
(b) Any offense committed outside the bases by any member of the
armed forces of the United States in which the offended party is
also a member of the armed forces of the United States; and
11
(c) Any offense committed outside the bases by any member of the
armed forces of the United States against the security of the
United States."
Under the Agreement between the United States of America and the
Republic of the Philippines Regarding the Treatment of United States Armed
Forces Visiting the Philippines which was signed on 10 February 1998 ("RP-
US Visiting Forces Accord"), the Philippines agreed that:
(a) US military authorities shall have the right to exercise within the
Philippines all criminal and disciplinary jurisdiction conferred on
them by the military law of the US over US personnel in RP;
(b) US authorities exercise exclusive jurisdiction over US personnel
with respect to offenses, including offenses relating to the security
of the US punishable under the law of the US, but not under the
laws of RP;
(c) US military authorities shall have the primary right to exercise
jurisdiction over US personnel subject to the military law of the
US in relation to: (1) offenses solely against the property or
security of the US or offenses solely against the property or
person of US personnel; and (2) offenses arising out of any act or
omission done in performance of official duty.
Law of preferential application.

Example of a law of preferential application.
Rep. Act No. 75 may be considered a law of preferential
application in favor of diplomatic representatives and their domestic
servants.
12
It is a law to penalize acts which would impair the proper observance by

the Republic and inhabitants of the Philippines of the immunities, rights, and
privileges of duly accredited foreign diplomatic representatives in the
Philippines. Its pertinent
provisions are:
"SEC. 4. Any writ or process issued out or prosecuted by any person in
any court of the Republic of the Philippines, or by any judge or justice,
whereby the person of any ambassador or public minister of any foreign State,
authorized and received as such by the President, or any domestic or domestic
servant of any such ambassador or minister is arrested or imprisoned, or his
goods or chattels are distrained, seized or attached, shall be deemed void, and
every person by whom the same is obtained or prosecuted, whether as party or
as attorney, and every officer concerned in executing it, shall, upon conviction,
be punished by imprisonment for not more than three years and a fine of not
exceeding two hundred pesos in the discretion of the court."
Exceptions:
"SEC. 5. The provisions of Section four hereof shall not apply to any
case where the person against whom the process is issued is a citizen or
inhabitant of the Republic of the Philippines, in the service of an ambassador
or a public minister, and the process is founded upon a debt contracted before
he entered upon such service; nor shall the said section apply to any case
where the person against whom the process is issued is a domestic servant of
an ambassador or a public minister, unless the name of the servant has, before
the issuing thereof, been registered in the Department of Foreign Affairs, and
transmitted by the Secretary of Foreign Affairs to the Chief of Police of the
City of Manila, who shall upon receipt thereof post the same in some public
place in his office. All persons shall have resort to the list of names so posted in
the office of the Chief of Police, and may take copies without fee."
Not applicable when the foreign country adversely affected does not provide
similar protection to our diplomatic representatives.
"SEC. 7. The provisions of this Act shall be applicable only in cases
where the country of the diplomatic or consular repre-
12

sentative adversely affected has provided for similar protection to duly
accredited diplomatic or consular representatives of the Republic of the
Philippines by prescribing like or similar penalties for like or similar
offenses herein contained."
Persons exempt from the operation of our criminal laws by

virtue of the principles of public international law.
The following are not subject to the operation of our criminal laws:
(1) Sovereigns and other chiefs of state.

(2) Ambassadors, ministers plenipotentiary, ministers resident, and
charges d'affaires.
It is a well-established principle of international law that diplomatic
representatives, such as ambassadors or public ministers and their official
retinue, possess immunity from the criminal jurisdiction of the country of
their sojourn and cannot be sued, arrested or punished by the law of that
country. (II Hyde, International Law, 2nd Ed., 1266)
A consul is not entitled to the privileges and immunities of

an ambassador or minister.
It is well-settled that a consul is not entitled to the privileges and
immunities of an ambassador or minister, but is subject to the laws and
regulations of the country to which he is accredited. (Schneckenburger vs.
Moran, 63 Phil. 250)
In the absence of a treaty to the contrary, a consul is not exempt from
criminal prosecution for violations of the laws of the country where he resides.
Consuls, vice-consuls and other commercial representatives of foreign
nations do not possess the status of, and cannot claim the
privileges and immunities accorded to ambassadors and ministers. (Wheaton,
International Law, Sec. 249)
II. TERRITORIAL, in that criminal laws undertake to punish crimes
committed within Philippine territory.
The principle of territoriality means that as a rule, penal laws of the
Philippines are enforceable only within its territory.
Extent of Philippine territory for purposes of criminal law.

Article 2 of the Revised Penal Code provides that the provisions of said
code shall be enforced within the Philippine Archipelago, including its
atmosphere, its interior waters and maritime zone.
14
Article I of the 1987 Constitution provides that the national territory
comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the Philippines has
sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial
domains, including its territorial sea, the seabed, the subsoil, the insular
shelves, and other submarine areas. The waters around, between, and
connecting the islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the Philippines.
Exceptions to the territorial application of criminal law.

The same Article 2 of the Revised Penal Code provides that its
provisions shall be enforced outside of the jurisdiction of the Philippines
against those who:
1. Should commit an offense while on a Philippine ship or airship;

2. Should forge or counterfeit any coin or currency note of the
Philippines or obligations and securities issued by the Government
of the Philippines;
3. Should be liable for acts connected with the introduction into the
Philippines of the obligations and securities mentioned in the
preceding number;
4. While being public officers or employees, should commit an
offense in the exercise of their functions; or
5. Should commit any of the crimes against national security and the
law of nations, defined in Title One of Book Two of the Revised
Penal Code.
III. PROSPECTIVE, in that a penal law cannot make an act punishable in a
manner in which it was not punishable when committed. As provided in
Article 366 of the Revised Penal Code, crimes are punished under the
laws in force at the time of their commission.
15
Different Effects of Repeal of Penal Law
Exceptions to the prospective application of criminal laws.

Whenever a new statute dealing with crime establishes conditions more
lenient or favorable to the accused, it can be given a
retroactive effect.
But this exception has no application:
1. Where the new law is expressly made inapplicable to pending
actions or existing causes of action. (Tavera vs. Valdez, 1 Phil. 463,
470-471)
2. Where the offender is a habitual criminal under Rule 5, Article
62, Revised Penal Code. (Art. 22, RPC)
Different effects of repeal of penal law.

1. If the repeal makes the penalty lighter in the new law, the new law
shall be applied, except when the offender is a habitual delinquent
or when the new law is made not applicable to pending action or
existing causes of action.
2. If the new law imposes a heavier penalty, the law in force at the
time of the commission of the offense shall be applied.
3. If the new law totally repeals the existing law so that the act which
was penalized under the old law is no longer punishable, the crime
is obliterated.
When the repeal is absolute the offense ceases to be

criminal.
People vs. Tamayo

(61 Phil. 225)
Facts: The accused was prosecuted for and convicted of a violation

of an ordinance. While the case was pending appeal, the ordinance was
repealed by eliminating the section under which the accused was being
prosecuted.
Ruling: The repeal is absolute. Where the repeal is absolute, and
not a reenactment or repeal by implication, the offense ceases to be criminal.
The accused must be acquitted.
16
But repeal of a penal law by its reenactment, even without a

saving clause, would not destroy criminal liability. (U.S. vs. Cuna, 12
Phil. 241)
When the new law and the old law penalize the same
offense, the offender can be tried under the old law.
U.S. vs. Cuna
(12 Phil. 241)
Facts: The accused was charged with selling opium in violation of

Act No. 1461 of the Philippine Commission. During the pendency of the
case, Act No. 1761 took effect repealing the former law, but both Act
No. 1461 and Act No. 1761 penalize offenses against the opium laws.
Ruling: Where an Act of the Legislature which penalizes an
offense repeals a former Act which penalized the same offense, such
repeal does not have the effect of thereafter depriving the courts of
jurisdiction to try, convict, and sentence offenders charged with
violations of the old law prior to its repeal.
The penalty prescribed by Act No. 1761 is not more favorable to the
accused than that prescribed in Act No. 1461, the penalty in both Acts being
the same.
When the repealing law fails to penalize the offense

under the old law, the accused cannot be convicted
under the new law.
People vs. Sindiong and Pastor

(77 Phil. 1000)
Facts: The accused was prosecuted for neglecting to make a return

of the sales of newspapers and magazines within the time prescribed by
certain sections of the Revised Administrative Code. Said sections of the
Revised Administrative Code were repealed by the National Internal
Revenue Code which does not require the making of return of sales of
newspapers and magazines.
Ruling: The court loses jurisdiction where the repealing law wholly
fails to penalize the act denned and penalized as an offense in the old
17
law. The accused, charged with violations of the old law prior to the
repeal, cannot be legally prosecuted after such repeal.
The provisions of said sections of the Revised Administrative
Code were not reenacted, even substantially, in the National Internal
Revenue Code.
A person erroneously accused and convicted under a

repealed statute may be punished under the repealing
statute.
The accused was charged with having failed to pay the salary of
Cabasares whom he employed as master fisherman in his motor launch from
June 26 to October 12, 1952. He was convicted under Com. Act No. 303, which
was repealed by Rep. Act No. 602, approved on April 16, 1951, and became
effective 120 days thereafter. The subject-matter of Com. Act No. 303 is
entirely covered by Rep. Act No. 602 with which its provisions are
inconsistent. It was held that the fact that the offender was erroneously
accused and convicted under a statute which had already been repealed and
therefore no longer existed at the time the act complained of was committed
does not prevent conviction under the repealing statute which punishes the
same act, provided the accused had an opportunity to defend himself against
the charge brought against him. (People vs. Baesa, C.A., 56
O.G. 5466)
A new law which omits anything contained in the old law

dealing on the same subject, operates as a repeal of
anything not so included in the amendatory act.
The Agricultural Land Reform Code superseded the
Agricultural Tenancy Law (except as qualified in Sections 4 and
35 of the Code). The Code instituted the leasehold system and abolished share
tenancy subject to certain conditions indicated in Section 4 thereof. It is
significant that Section 39 is not reproduced in the Agricultural Land Reform
Code whose Section 172 repeals "all laws or part of any law inconsistent with"
its provisions. Under the leasehold system, the prohibition against pre-
threshing has no more raison d' etre because the lessee is obligated to pay a
fixed rental as prescribed in Section 34 of the Agricultural Land Reform
Code, or the Code of Agrarian Reforms, as redesignated in R.A.
18
No. 6389 which took effect on September 10, 1971. Thus, the legal maxim,
cessante ratione legis cessat ipsa lex (the reason for the law ceasing, the law
itself also ceases), applies to this case. (People vs.
Almuete, 69 SCRA 410)
19
Construction of Penal Laws
Self-repealing law.
The anomalous act attributed to Pedro de los Reyes as described in the
information is undoubtedly a violation of Republic Act No. 650 being a
"material misrepresentation in any document required" by said Act "or the
rules and regulations issued thereunder" and was committed while said Act
was in force. It was punishable under Section 18 of said Act with fine or
imprisonment, or both, and with forfeiture of the goods or commodities
imported in violation thereof. (Sec. 18, R.A. No. 650) But since Rep. Act No.
650 expired by its own limitation on June 30, 1953, the forfeiture therein
provided could no longer be subsequently enforced. And, as correctly stated
by the Undersecretary of Justice in his Opinion No. 138, dated July 22,1953,
"the jurisdiction of the Commissioner of Customs to proceed with the
forfeiture of goods and commodities imported in violation of the Import
Control Law was lost and that all proceedings of forfeiture, as well as criminal
actions pending on June 30, 1953, abated with the expiration of Republic Act
No. 650."
The falsification or misrepresentation allegedly committed on the
import license could no longer be a basis for the penalty of forfeiture at the
time of the release of goods. Where an act expires by its own limitation, the
effect is the same as though it had been repealed at the time of its expiration;
and it is a recognized rule in this jurisdiction that the repeal of a law carries
with it the deprivation of the courts of jurisdiction to try, convict and sentence
persons charged with violation of the old law prior to the repeal. (People vs.
Jacinto, C.A., 54 O.G. 7587)
Construction of penal laws.

1. Penal laws are strictly construed against the Government and
liberally in favor of the accused. (U.S. vs. Abad Santos, 36 Phil.
243; People vs. Yu Hai, 99 Phil. 728) The rule that penal statutes
should be strictly construed against the State may be invoked only
where the law is ambiguous and there is doubt as to its
interpretation. Where the law is clear and unambiguous, there is
no room for the application of the rule. (People vs. Gatchalian,
104 Phil. 664)
2. In the construction or interpretation of the provisions of the
Revised Penal Code, the Spanish text is controlling, because it was
approved by the Philippine Legislature in its Spanish text. (People
vs. Manaba, 58 Phil. 665, 668)
20
People vs. Garcia

(94 Phil. 814, 815)
Facts: Accused Garcia was prosecuted for having sold tickets for
"Have" races of the Philippine Charity Sweepstakes, in violation of Act
4130, as amended by Commonwealth Act No. 301, which penalizes any
person who, without being a duly authorized agent of the Philippine
Charity Sweepstakes, sold tickets of said corporation. The tickets sold
by the accused were different from, and not, the tickets issued by said
corporation. The law relied upon does not include "Have" tickets for
Sweepstakes races.
Held: The accused must be acquitted, the act imputed to him not
being punished by Act 4130, as amended.
No person should be brought within the terms of criminal statutes who

is not clearly within them, nor should any act be pronounced criminal which is
not clearly made so by the statute. (U.S. vs. Abad Santos, 36 Phil. 243, 246)
People vs. Mangulabnan

(99 Phil. 992, 998)
Facts: During the robbery in a dwelling house, one of the culprits

fired his gun upward in the ceiling, not knowing that there was a person
in the ceiling of the house. The owner of the house who was up in the
ceiling was hit by the slug that passed through it and was killed.
Art. 294, par. 1, of the Revised Penal Code provides, according to
its English text, that the crime is robbery with homicide "when by
reason or on occasion of the robbery the crime of homicide shall have
been committed."
The Spanish text of the same provision reads, as follows:

"Cuando con motivo o con ocasion del robo resultare homicidio."
Held: In view of the Spanish text which must prevail, the crime
committed is robbery with homicide, even if the homicide supervened
by mere accident.
While the English text of Art. 294, par. 1, of the Revised Penal
Code seems to convey the meaning that the homicide should be intentionally
committed, the Spanish text means that it is sufficient
that the homicide shall have resulted, even if by mere accident.
21
Other cases of incorrect translation of the Spanish text

into the English text.
1. "sosteniendo combate" into "engaging in war" in Art. 135.
(People vs. Geronimo, 100 Phil. 90, 95-96)
2. "sufriendo privacion de libertad" into "imprisonment" in Art. 157.
(People vs. Abilong, 82 Phil. 172, 174)
3. "nuevo delito" into "another crime" in the headnote of Art. 160.
(People vs. Yabut, 58 Phil. 499, 504)
4. "semilla alimenticia" into "cereal" in Art. 303. (People vs. Mesias,
65 Phil. 267, 268)
5. "filed" in the third paragraph of Art. 344 which is not found in the
Spanish text. (People vs. Manaba, 58 Phil. 665, 668)
- oOo -
22
THE REVISED PENAL CODE
(Act No. 3815, as amended)

AN ACT REVISING THE PENAL CODE
AND OTHER PENAL LAWS
Be it enacted by the Senate and House of Representatives of the
Philippines in Legislature assembled and by the authority of the same.
PRELIMINARY ARTICLE - This law shall be known as T h e Revised
Penal Code."
BOOK ONE
General Provisions Regarding the Date of
Enforcement and the Application of the Provisions of
this Code, and Regarding the Offenses, the Persons
Liable and the Penalties
Preliminary Title
DATE OF EFFECTD7ENESS AND APPLICATION
OF THE PROVISIONS OF THIS CODE
History of the Revised Penal Code.

This Code is called "Revised Penal Code," because the Committee
which was created by Administrative Order No. 94 of the Department
21
HISTORY OF THE REVISED PENAL CODE
of Justice, dated October 18, 1927, composed of Anacleto Diaz, as chairman,

and Quintin Paredes, Guillermo Guevara, Alex Reyes and Mariano H. de
Joya, as members, was instructed to revise the old Penal Code, taking into
consideration the existing conditions, the special penal laws and the rulings
laid down by the Supreme Court.
The Committee did not undertake the codification of all penal laws in
the Philippines. What the Committee did was merely to revise the old Penal
Code and to include in the draft the other penal laws related to it.
The Revised Penal Code does not embody the latest progress of criminal
science, as the results of the application of advanced and radical theories "still
remain to be seen."
The old Penal Code, which was revised by the Committee, took effect in
the Philippines on July 14, 1887, and was in force up to December 31, 1931.
In the case of U.S. vs. Tamparong, 31 Phil. 321, 323, the Supreme Court
traced the history of the old Penal Code, as follows:
"The royal order dated December 17, 1886, directed the execution
of the royal decree of September 4, 1884, wherein it was ordered that the
Penal Code in force in the Peninsula, as amended in accordance with the
recommendations of the code committee, be published and applied in the
Philippine Islands x x x . (This law) having been published in the Official
Gazette of Manila on March 13 and 14, 1887, became effective four
months thereafter."
The Revised Penal Code, as enacted by the Philippine Legislature, was
approved on December 8, 1930. It took effect on January 1, 1932. Felonies and
misdemeanors, committed prior to January 1, 1932, were punished in
accordance with the Code or Acts in force at the time of their commission, as
directed by Art. 366 of the Revised Penal Code.
The Revised Penal Code consists of two books.

The Revised Penal Code consists of two books, namely: (1) Book One,
and (2) Book Two.
DATE OF EFFECTIVENESS OF THE Art 1
REVISED PENAL CODE
Book One consists of two parts: (a) basic principles affecting criminal
liability (Arts. 1-20), and (b) the provisions on penalties including criminal
and civil liability (Arts. 21-113).
In Book Two are defined felonies with the corresponding penalties,
classified and grouped under fourteen different titles (Arts. 114-365).
24
Date of Effectiveness.
Article 1. Time when Act takes effect. — This Code shall take effect on
the first day of January, nineteen hundred and thirty-two.
The Revised Penal Code is based mainly on principles of

the classical school.
This Revised Penal Code continues, like the old Penal Code, to be based
on the principles of the old or classical school, although some provisions of
eminently positivistic tendencies (those having reference to the punishment of
impossible crimes, juvenile delinquency, etc.) were incorporated in the present
Code.
Two theories in Criminal Law.

There are two important theories in criminal law: (1) the classical
theory, and (2) the positivist theory.
Characteristics of the classical theory.

1. The basis of criminal liability is human free will and the purpose of
the penalty is retribution.
2. That man is essentially a moral creature with an absolutely free
will to choose between good and evil, thereby placing more stress
upon the effect or result of the felonious act than upon the man,
the criminal himself.
3. It has endeavored to establish a mechanical and direct proportion
between crime and penalty.
25
Art. 2 APPLICATION OF ITS PROVISIONS
4. There is a scant regard to the human element. (Basic Principles,
Rationale, p. 2, by the Code Commission on Code of Crimes)
Characteristics of the positivist theory.

1. That man is subdued occasionally by a strange and morbid
phenomenon which constrains him to do wrong, in spite of or
contrary to his volition.
2. That crime is essentially a social and natural phenomenon, and as
such, it cannot be treated and checked by the application of
abstract principles of law and jurisprudence nor by the imposition
of a punishment, fixed and determined a priori; but rather
through the enforcement of individual measures in each
particular case after a thorough, personal and individual
investigation conducted by a competent
body of psychiatrists and social scientists.
(Basic Principles, Rationale, pp. 2 and 3, by the Code Commission on
Code of Crimes)
Art. 2. Application of its provisions. — Except as provided in the treaties

a n d l a w s of preferential application, the provisions of this Code shall be
enforced not only within the Philippine Archipelago, including its atmosphere,
its interior waters and maritime zone, but also outside of its jurisdiction,
against those who:
1. Should commit an offense while on a Philippine ship or airship;
2. Should forge or counterfeit any coin or currency n o t e o f t h e P
h i l i p p i n e I s l a n d s o r o b l i g a t i o n s a n d securities i s s
u e d by t h e G o v e r n m e n t of the Philippine Islands;
3 . S h o u l d b e l i a b l e for a c t s c o n n e c t e d w i t h t h e
introduction into these Islands of the obligations and securities
mentioned in the preceding number;
4. While being public officers or employees, should commit an
offense in the exercise of their functions; or APPLICATION OF
ITS PROVISIONS Art. 2
5. Should commit any of the crimes against national security and the
law of nations, defined in Title One of Book Two of this Code.
26
Scope of the application of the provisions of the Revised
Penal Code.
The provisions of the Revised Penal Code shall be enforced not only
within the Philippine Archipelago, but also outside of its jurisdiction in certain
cases.
The five paragraphs of Art. 2 treat of the application of the
Revised Penal Code to acts committed in the air, at sea, and even in a foreign
country when such acts affect the political or economic life of the nation.
In what cases are the provisions of the Revised Penal

Code applicable even if the felony is committed outside of
the Philippines?
They are applicable in the following cases:
1. When the offender should commit an offense while on a Philippine
ship or airship.
The Philippine vessel, although beyond three miles from the
seashore, is considered part of the national territory.
Thus, any person who committed a crime on board a
Philippine ship or airship while the same is outside of the
Philippine territory can be tried before our civil courts for violation of
the Penal Code.
But when the Philippine vessel or aircraft is in the territory of a
foreign country, the crime committed on said vessel or aircraft is
subject to the laws of that foreign country.
A Philippine vessel or aircraft must be understood as that which
is registered in the Philippine Bureau of Customs.
It is the registration of the vessel or aircraft in accordance with
the laws of the Philippines, not the citizenship of its owner, which
makes it a Philippine ship or airship. A vessel or aircraft which is
unregistered or unlicensed does not come within the purview of
paragraph No. 1 of Art. 2.
Thus, if a crime is committed ten miles from the shores of the Philippines
on board a vessel belonging to a Filipino, but the same is not registered or
licensed in accordance with the laws of the Philippines, paragraph No. 1 of Art.
2 is not applicable.
The Philippine court has no jurisdiction over the crime of theft
committed on the high seas on board a vessel not registered
27
or licensed in the Philippines. (U.S. vs. Fowler, 1 Phil. 614)
2. When the offender should forge or counterfeit any coin or currency note
of the Philippines or obligations and securities issued by the
Government.
Thus, any person who makes false or counterfeit coins (Art. 163) or
forges treasury or bank notes or other obligations and securities (Art. 166) in
a foreign country may be prosecuted before our civil courts for violation of
Art. 163 or Art. 166 of the Revised Penal Code.
3. When the offender should be liable for acts connected with the
introduction into the Philippines of the obligations and securities
mentioned in the preceding number.
The reason for this provision is that the introduction of forged or
counterfeited obligations and securities into the Philippines is as dangerous as
the forging or counterfeiting of the same, to the economical interest of the
country.
4. When the offender, while being a public officer or employee, should
commit an offense in the exercise of his functions.
The crimes that may be committed in the exercise of public functions
are direct bribery (Art. 210), indirect bribery (Art. 211), frauds against the
public treasury (Art. 213), possession of prohibited interest (Art. 216),
malversation of public funds or property (Art. 217), failure of accountable
officer to render accounts (Art. 218), illegal use of public funds or property
(Art. 220), failure to make delivery of public funds or property (Art. 221), and
falsification by a public officer or employee committed with abuse of his
official position. (Art. 171)
28
APPLICATION OF ITS PROVISIONS Art. 2
When any of these felonies is committed abroad by any of our

public officers or employees while in the exercise of his functions, he can
be prosecuted here.
5. When the offender should commit any of the crimes against the national
security and the law of nations.
The crimes against the national security and the law of nations are
treason (Art. 114), conspiracy and proposal to commit treason (Art. 115),
espionage (Art. 117), inciting to war and giving motives for reprisals
(Art. 118), violation of neutrality (Art. 119), correspondence with hostile
country (Art. 120), flight to enemy's country (Art. 121), and piracy and
mutiny on the high seas. (Art. 122)
The crimes punishable in the Philippines under Art. 2 are

cognizable by the Regional Trial Court in which the charge
is filed.
The crimes committed outside of the Philippines but punishable therein
under Article 2 of the Revised Penal Code shall be cognizable by the Regional
Trial Court in which the charge is first filed. (Rule 110, Sec. 15[d], Revised
Rules of Criminal Procedure)
Regional Trial Courts (formerly CFI) have original jurisdiction over all
crimes and offenses commited on the high seas or beyond the jurisdiction of
any country on board a ship or warcraft of any kind registered or licensed in
the Philippines in accordance with its laws. (Sec. 44[g], Judiciary Act of 1948,
Rep. Act No. 296)
IMPORTANT WORDS AND PHRASES IN ART. 2

1. "Except as provided in the treaties and laws of preferential
application."
This phrase means that while the general rule is that the
provisions of the Revised Penal Code shall be enforced against any
person who violates any of its provisions while living or sojourning
in the Philippines, the exceptions to that rule may be provided by
the treaties and laws of preferential applications, like the RP-US
Visiting Forces Accord, the Military Bases Agreement between the
Republic
27
3pW2!»
of the Philippines and the United States of America, and the
provisions of Rep. Act No. 75.
2. "its atmosphere."
The sovereignty of the subjacent State, and therefore its
penal laws extend to all the air space which covers its territory,
subject to the right of way or easement in favor of foreign
aircrafts.
3. "interior waters."
The phrase "interior waters" includes creeks, rivers, lakes
and bays, gulfs, straits, coves, inlets and roadsteads lying wholly
within the three-mile limit.
4. "maritime zone."
The States by means of treaties have fixed its length to three
miles from the coastline, starting from the low water mark.
It includes those bays, gulfs, adjacent parts of the sea or
recesses in the coastline whose width at their entrance is not more
than twelve miles measured in a straight line from headland to
headland, and all straits of less than six miles wide.
For those straits having more than that width, the space in
the center outside of the marine league limits is considered as open
sea. (Opinion of Attorney General, Jan. 18,1912)
Crimes committed on board foreign merchant ship or

airship.
Just as our merchant ship is an extension of our territory, foreign
merchant ship is considered an extension of the territory of the country to
which it belongs. For this reason, an offense commited on the high seas on
board a foreign merchant vessel is not triable by our courts. (U.S. vs. Fowler, 1
Phil. 614)
Continuing offense on board a foreign vessel.

But a continuing crime committed on board a Norwegian merchant
vessel sailing from Formosa to the Philippines, by failing Art. 2
to provide stalls for animals in transit in violation of Act No. 55, is triable in
the Philippines.
30
APPLICATION OF ITS PROVISIONS
The offense of failing to provide suitable means for securing animals
while transporting them on a (foreign) ship from a foreign port to a port of the
Philippines is within the jurisdiction of the courts of the Philippines when the
forbidden conditions existed during the time the ship was within territorial
waters, regardless of the fact that the same conditions existed when the ship
sailed from the foreign port and while it was on the high seas. (U.S. vs. Bull, 15
Phil. 7)
Offense committed on board a foreign merchant vessel

while on Philippine waters is triable before our court.
Since the Philippine territory extends to three miles from the headlands,
when a foreign merchant vessel enters this three-mile limit, the ship's officers
and crew become subject to the jurisdiction of our courts. The space within 3
miles of a line drawn from the headlands which embrace the entrance to
Manila Bay is within territorial waters. (U.S. vs. Bull, 15 Phil. 7, 17-18)
Rules as to jurisdiction over crimes committed aboard

foreign merchant vessels.
There are two rules as to jurisdiction over crimes committed aboard
merchant vessels while in the territorial waters of another country.
French Rule. — Such crimes are not triable in the courts of that country,
unless their commission affects the peace and security of the territory or the
safety of the state is endangered.
English Rule. — Such crimes are triable in that country, unless they
merely affect things within the vessel or they refer to the internal management
thereof.
In this country, we observe the English Rule.
According to the French theory and practice, matters happening on
board a merchant ship which do not concern the tranquility of the port or
persons foreign to the crew, are justiceable only by the courts of the country
to which the vessel belongs. The French courts therefore claim exclusive
jurisdiction over crimes committed on board French merchant vessels in
foreign ports by one member of the crew against another. Such jurisdiction
has never been admitted or claimed by Great Britain as a right, although she
has frequently conceded it by treaties. (U.S. vs. Bull, 15 Phil. 7, 14)
Do the Philippine courts have jurisdiction over the crime of

homicide committed on board a foreign merchant vessel
by
a member of the crew against another?
Disorders which disturb only the peace of the ship or those on board are
to be dealt with exclusively by the sovereignty of the home of the ship, but
31
those which disturb the public peace may be suppressed, and, if need be, the
offenders punished by the proper authorities of
the local jurisdiction.
It may not be easy at all times to determine to which of the two
jurisdictions a particular act of disorder belongs. Much will undoubtedly
depend on the attending circumstances of the particular case, but all must
concede that felonious homicide is a subject for the local jurisdiction, and that
if the proper authorities are proceeding with the case in the regular way, the
consul has no right to interfere to prevent it. (Mali and Wildenhus vs. Keeper
of the Common Jail,
120 U.S. 1, cited in People vs. Wong Cheng, 46 Phil. 729, 731-732)
Crimes not involving a breach of public order committed

on board a foreign merchant vessel in transit not triable by
our courts.
Mere possession of opium aboard a foreign merchant vessel in transit is
not triable in Philippine courts, because that fact alone does not constitute a
breach of public order. The reason for this ruling is that mere possession of
opium on such a ship, without being used in our territory, does not bring about
in this country those disastrous effects that our law contemplates avoiding. But
said courts acquire jurisdiction when the tins of opium are landed from the
vessel on Philippine soil. Landing or using opium is an open violation of the
laws of the Philippines. (U.S. vs. Look Chaw, 18 Phil. 573, 577-578)
When the foreign merchant vessel is not in transit because the
Philippines is its terminal port, the person in possession of opium on board
that vessel is liable, because he may be held guilty of illegal importation of
opium. (U.S. vs. Ah Sing, 36 Phil. 978, 981-982)
Art. 2
Smoking opium constitutes a breach of public order.

Smoking opium aboard an English vessel while anchored two and one-
half miles in Manila Bay constitutes a breach of public order, because the
primary object of the law in punishing the use of opium is to protect the
inhabitants of this country against the disastrous effects entailed by the use of
such drug. And to smoke opium within our territorial limits, even though
aboard a foreign merchant ship, is certainly a breach of the public order here
established, because it causes such drug to produce its pernicious effects within
our territory. Philippine courts have jurisdiction over crimes constituting a
breach of public order aboard merchant vessels anchored in Philippine
jurisdictional waters. (People vs. Wong Cheng, 46 Phil. 729, 733)
32
APPLICATION OF ITS PROVISIONS
Philippine courts have no jurisdiction over offenses
committed on board foreign warships in territorial waters.
In case vessels are in the ports or territorial waters of a foreign country,
a distinction must be made between merchant ships and warships; the former
are more or less subjected to the territorial laws. (See U.S. vs. Bull, 15 Phil. 7;
U.S. vs. Look Chaw, 18 Phil. 573; and People vs. Wong Cheng, 46 Phil. 729)
Warships are always reputed to be the territory of the country to which
they belong and cannot be subjected to the laws of another
state. A United States Army transport is considered a warship. (U.S. vs.
Fowler, 1 Phil. 614)
Extra-territorial application of Republic Act No. 9372.

Rep. Act No. 9372, otherwise known as the "Human Security Act of
2007" which was passed into law on 6 March 2007 has extraterritorial
application.
Section 58 of Rep. Act No. 9372 provides that subject to the provision of
an existing treaty of which the Philippines is a signatory and to any contrary
provision of any law of preferential application, the provisions of the Act shall
apply:
(1) to individual persons who commit any of the crimes defined and
punished in the Act within the terrestrial domain, interior waters,
maritime zone and airspace of the Philippines;
(2) to individual persons who, although physically outside the territorial
limits of the Philippines, commit, conspire of plot any of the crimes
denned and punished in the Act inside the territorial limits of the
Philippines;
(3) to individual persons who, although physically outside the territorial
limits of the Philippines, commit any of the said crimes on board
Philippine ship or airship;
(4) to individual persons who commit any of said crimes within any
embassy, consulate or diplomatic premises belonging to or occupied by
the Philippine government in an official capacity;
to individual persons who, although physically outside the
(5) territorial limits of the Philippines, commit said crimes against
Philippine citizens or persons of Philippine descent, where their
citizenship or ethnicity was a factor in the commission of the crime; and
to individual persons who, although physically outside the
(6) territorial limits of the Philippines, commit said crimes directly against
the Philippine government.
33
FELONIES
Title One
FELONIES AND CIRCUMSTANCES WHICH
AFFECT CRIMINAL LIABILITY
Chapter One FELONIES
Art. 3. Definition. — Acts and omissions punishable by law are felonies

(delitos).
Felonies are committed not only by means of deceit (dolo) but also by m
e a n s of fault (culpa).
There is deceit w h e n the act is performed with deliberate intent; and
there is fault w h e n the wrongful act results from imprudence, negligence,
lack of foresight, or lack of skill.
Felonies, defined.
Felonies are acts and omissions punishable by the Revised Penal Code.
Elements of felonies.
The elements of felonies in general are:
1. That there must be an act or omission.
2. That the act or omission must be punishable by the Revised Penal
Code.
3. That the act is performed or the omission incurred by means of
dolo or culpa. (People vs. Gonzales, G.R. No. 80762, March 19,
1990, 183 SCRA 309, 324)
33
Art. 3
IMPORTANT WORDS AND PHRASES IN ART. 3.
Meaning of the word "act."
34
By act must be understood any bodily movement tending to produce
some effect in the external world, it being unnecessary that the same be
actually produced, as the possibility of its production is sufficient. (See People
vs. Gonzales, supra)
But the act must be one which is defined by the Revised Penal
Code as constituting a felony; or, at least, an overt act of that felony, that is,
an external act which has direct connection with the felony intended to be
committed. (See Art. 6)
Example of felony by performing an act.

A took the watch of B with intent to gain and without the consent of the
latter. The act of taking the watch of B, with intent to gain, constitutes the
crime of theft.
Only external act is punished.

The act must be external, because internal acts are beyond the sphere of
penal law. Hence, a criminal thought or a mere intention, no matter how
immoral or improper it may be, will never constitute a felony.
Thus, even if A entertains the idea of killing B, as long as he does not
commence the commission of the crime directly by overt act, A is not
criminally liable.
Meaning of the word "omission."

By omission is meant inaction, the failure to perform a positive duty
which one is bound to do. There must be a law requiring the doing or
performance of an act.
Examples of felony by omission:

1. Anyone who fails to render assistance to any person whom he
finds in an uninhabited place wounded or in danger of dying, is
liable for abandonment of persons in danger. (Art.
275, par. 1)
FELONIES Art. 3
2. An officer entrusted with collection of taxes who voluntarily fails

to issue a receipt as provided by law, is guilty of illegal exaction.
(Art. 213, par. 2[b])
3. Every person owing allegiance to the Philippines, without being a
foreigner, and having knowledge of any conspiracy against the
FELONIES
government, who does not disclose and make known the same to
the proper authority, is liable for misprision of treason. (Art. 116)
It will be noted that in felonies by omission, there is a law requiring a
certain act to be performed and the person required to do the act fails to
perform it.
The omission must be punishable by law.

Because there is no law that punishes a person who does not report to
the authorities the commission of a crime which he witnessed, the omission to
do so is not a felony.
People vs. Silvestre and Atienza

(56 Phil. 353)
Facts: Martin Atienza was convicted as principal by direct

participation and Romana Silvestre as accomplice of the crime of arson
by the Court of First Instance.
On the night of November 25, 1930, while Nicolas de la Cruz and
his wife, Antonia de la Cruz, were gathered together with the appellants
herein after supper, Martin Atienza told said couple to take their
furniture out of the house because he was going to set fire to it. Upon
being asked by Nicolas and Antonia why he wanted to set fire to the
house, he answered that it was the only way he could be revenged upon
the people of Masocol, who, he said, had instigated the charge of
adultery against him and his co-defendant, Romana Silvestre. As
Martin Atienza was at that time armed with a pistol, no one dared say
anything to him, not even Romana Silvestre, who was about a meter
away from her co-defendant. Alarmed at what Martin Atienza had said,
the couple left the house at once to communicate with the barrio
lieutenant, Buenaventura Ania, as to what they had just heard Martin
Atienza say; but they had hardly gone a hundred arms' length when
they heard cries of "Fire! Fire!" Turning back they saw their home in
flames. The fire destroyed about forty-eight houses.
35
36
Romana listened to her co-defendant's threat without raising a
protest, and did not give the alarm when the latter set fire to the house.
Held: Mere passive presence at the scene of another's crime, mere
silence and failure to give the alarm, without evidence of agreement or
conspiracy, is not punishable.
Romana Silvestre was acquitted.
"Punishable by law."
This is the other element of a felony. This is based upon the maxim,
"nullum crimen, nulla poena sine lege," that is, there is no crime where there
is no law punishing it.
The phrase "punished by law" should be understood to mean "punished
by the Revised Penal Code" and not by a special law. That is to say, the term
"felony" means acts and omissions punished in the Revised Penal Code, to
distinguish it from the words "crime" and "offense" which are applied to
infractions of the law punished by special statutes.
Classification of felonies according to the means by which

they are committed.
Art. 3 classifies felonies, according to the means by which they are
committed, into (1) intentional felonies, and (2) culpable felonies.
Thus, the second paragraph of Art. 3 states that felonies are committed
not only by means of deceit (dolo) but also by means of fault (culpa).
Intentional felonies and culpable felonies distinguished.

In intentional felonies, the act or omission of the offender is malicious.
In the language of Art. 3, the act is performed with deliberate intent (with
malice). The offender, in performing the act or in incurring the omission, has
the intention to cause an injury to another. In culpable felonies, the act or
omission of the offender is not malicious. The injury caused by the offender to
another person is "unintentional, it being simply the incident of another act
performed without malice." (People vs. Sara, 55 Phil. 939) As stated in Art. 3,
the wrongful act results from imprudence, negligence, lack of foresight or lack
of skill.
Felonies committed by means of dolo or with malice.

Art. 3 FELONIES
The word "deceit" in the second paragraph of Art. 3 is not the proper
translation of the word "dolo." Dolus is equivalent to malice, which is the
intent to do an injury to another. (I Wharton's Criminal Law 180)
When the offender, in performing an act or in incurring an omission,
has the intention to do an injury to the person, property, or right of another,
such offender acts with malice. If the act or omission is punished by the
Revised Penal Code, he is liable for intentional felony.
Most of the felonies defined and penalized in Book II of the Revised
Penal Code are committed by means of dolo or with malice. There are few
felonies committed by means of fault or culpa. Art. 217 punishes malversation
through negligence. Art. 224 punishes evasion through negligence. Art. 365
punishes acts by imprudence or negligence, which, had they been intentional,
would constitute grave, less grave or light felonies.
There are crimes which cannot be committed through imprudence or
negligence, such as, murder, treason, robbery, and malicious mischief.
Felonies committed by means of fault or culpa.

Between an act performed voluntarily and intentionally, and another
committed unconsciously and quite unintentionally, there exists another,
performed without malice, but at the same time punishable, though in a lesser
degree and with an equal result, an intermediate act which the Penal Code
qualifies as imprudence or negligence.
A person who caused an injury, without intention to cause

an evil, may be held liable for culpable felony.
The defendant, who was not a medical practitioner, tied a girl, wrapped
her feet with rags saturated with petroleum and thereafter
set them on fire, causing injuries. His defense was that he undertook
37
to render medical assistance in good faith and to the best of his ability to cure
her of ulcer. It was held that while there was no intention to cause an evil but
to provide a remedy, the defendant was liable for physical injuries through
imprudence. (U.S. vs. Divino, 12 Phil. 175, 190)
Imprudence, negligence, lack of foresight or lack of skill.

Imprudence indicates a deficiency of action. Negligence indicates a
deficiency of perception. If a person fails to take the necessary precaution to
38
avoid injury to person or damage to property, there is imprudence. If a person
fails to pay proper attention and to use due diligence in foreseeing the injury
or damage impending to be caused, there is negligence. Negligence usually
involves lack of foresight. Imprudence usually involves lack of skill.
Reason for punishing acts of negligence (culpa).

A man must use common sense, and exercise due reflection in all his
acts; it is his duty to be cautious, careful and prudent, if not from instinct,
then through fear of incurring punishment. He is responsible for such results
as anyone might foresee and for his acts which no one would have performed
except through culpable abandon. Otherwise, his own person, rights and
property, and those of his fellow beings, would ever be exposed to all manner
of danger and injury. (U.S. vs. Maleza, 14 Phil. 468, 470)
In felonies committed by means of dolo or with malice and

in felonies committed by means of fault or culpa, the acts
or omissions are voluntary.
The adjective voluntary used in the old Penal Code is suppressed in the
definition of felonies in Art. 3 of the Revised Penal Code. This omission does
not mean that an involuntary act may constitute a felony. As in the old Penal
Code, the act or omission must be voluntary and punishable by law to
constitute a felony. Art. 3 classifies felonies into (1) intentional felonies, and (2)
culpable felonies. An intentional felony is committed when the act is
performed with deliberate intent, which must necessarily be voluntary.
On the other hand, in culpable felony, which is committed when the
wrongful act results from imprudence, negligence, lack of foresight or lack of
skill, the act is also voluntary.
FELONIES
Art. 3
The only difference between intentional felonies and culpable felonies is

that, in the first, the offender acts with malice; whereas, in the second, the
offender acts without malice.
The definition of reckless imprudence in Art. 365 says "reckless
imprudence consists in voluntarily, but without malice, doing or failing to do
an act from which material damage results."
Thus, a hunter who seemed to have seen with his lantern something like
the eyes of a deer about fifty meters from him and then shot it, but much to his
surprise, on approaching what he thought was a deer, it proved to be his
companion, performed a voluntary act in discharging his gun, although the
resulting homicide is without malice, because he did not have the intent to kill
the deceased. But the hunter, knowing that he had two companions, should
have exercised all the necessary diligence to avoid every undesirable accident,
such as the one that unfortunately occurred on the person of one of his
companions. The hunter was guilty of the crime of homicide through reckless
imprudence (People vs. Ramirez, 48 Phil. 206)
A criminal act is presumed to be voluntary. Fact prevails over
assumption, and in the absence of indubitable explanation, the act must be
declared voluntary and punishable. (People vs. Macalisang, 22 SCRA 699)
Acts executed negligently are voluntary.

People vs. Lopez
(C.A. 44 O.G. 584)
Facts: Lopez was driving a truck. A girl was crossing the street
during a torrential rain. The girl was struck down by the truck. During
the trial, Lopez claimed that he had no intention of causing injury to the
girl.
Held: Lopez was not accused of intentional homicide, but of
having caused her death by reckless imprudence, which implies lack of
malice and criminal intent. Acts executed negligently are voluntary,
although done without malice or criminal design. In this case, Lopez
was not compelled to refrain or prevented from taking the precaution
necessary to avoid injury to persons.
When there is compulsion or prevention by force or intimidation, there

is no voluntariness in the act.
39
Three reasons why the act or omission in felonies must be

voluntary.
1. The Revised Penal Code continues to be based on the Classical
Theory, according to which the basis of criminal liability is human
free will.
2. Acts or omissions punished by law are always deemed voluntary,
since man is a rational being. One must prove that his case falls
under Art. 12 to show that his act or omission is not voluntary.
3. In felonies by dolo, the act is performed with deliberate intent
which must necessarily be voluntary; and in felonies by culpa, the
imprudence consists in voluntarily, but without malice, doing or
failing to do an act from which material injury results.
Therefore, in felonies committed by means of dolo, as well as in those
committed by means of culpa, the act performed or the omission incurred by
the offender is voluntary, but the intent or malice in intentional felonies is
replaced by imprudence, negligence, lack of foresight or lack of skill in
culpable felonies.
Requisites of dolo or malice.

In order that an act or Omission may be considered as having been
performed or incurred with deliberate intent, the following requisites must
concur:
(1) He must have FREEDOM while doing an act or

omitting to do an act;
(2) He must have INTELLIGENCE while doing the act

or omitting to do the act;
(3) He must have INTENT while doing the act or omitting
to do the act.
1. Freedom. When a person acts without freedom, he is no longer a human
being but a tool; his liability is as much as that of the knife that wounds,
or of the torch that sets fire, or of the key that opens a door, or of the
ladder that is placed against the wall of a house in committing robbery.
Thus, a person who acts under the compulsion of an irresistible force is
exempt from criminal liability. (Art. 12, par. 5)
So also, a person who acts under the impulse of an uncontrollable fear of
an equal or greater injury is exempt from criminal liability (Art. 12, par. 6)
Art. 3 FELONIES
2. Intelligence. Without this power, necessary to determine the morality of
human acts, no crime can exist. Thus, the imbecile or the insane, and the
infant under nine years of age as, well as the minor over nine but less
than fifteen years old and acting without discernment, have no criminal
liability, because they act without intelligence. (Art. 12, pars. 1, 2 and 3)
3. Intent. Intent to commit the act with malice, being purely a mental
process, is presumed and the presumption arises from the proof of the
commission of an unlawful act.
All the three requisites of voluntariness in intentional felony must be
present, because "a voluntary act is a free, intelligent, and intentional act."
(U.S. vs. Ah Chong, 15 Phil. 488, 495)
Intent presupposes the exercise of freedom and the use of

intelligence.
One who acts without freedom necessarily has no intent to do an injury
to another. One who acts without intelligence has no such intent.
But a person who acts with freedom and with intelligence may not have
the intent to do an injury to another. Thus, a person who caused an injury by
mere accident had freedom and intelligence, but since he had no fault or
intention of causing it, he is not criminally liable. (Art. 12, par. 4, Revised
Penal Code)
The existence of intent is shown by the overt acts of a

person.
Where the defendant carried away articles belonging to another and
concealed them from the owner and from the police authorities, denying
having them in his possession, in the absence of a satisfactory explanation, it
may be inferred that he acted with intent of gain. Intent is a mental state, the
existence of which is shown by the overt acts of a person. (Soriano vs. People,
88 Phil. 368, 374)
41
42
Art. 3 FELONIES
Intent to kill is difficult to prove, it being a mental act. But it can be

deduced from the external acts performed by a person. When the acts
naturally produce a definite result, courts are slow in concluding that some
other result was intended. (U.S. vs. Mendoza, 38 Phil. 691-693; People vs.
Mabug-at, 51 Phil. 967, cited in People vs. Lao, 11 C.A. Rep. 829)
Criminal intent is presumed from the commission of an

unlawful act.
People vs. Sia Teb Ban
(54 Phil. 52, 53)
Facts: The accused took a watch without the owner's consent. He

was prosecuted for theft. The accused alleged as a defense that the
prosecution failed to prove the intent to gain on his part, an element of
the crime of theft.
Held: From the felonious act (taking another's property) of the
accused, freely and deliberately executed, the moral and legal
presumption of a criminal and injurious intent arises conclusively and
indisputably, in the absence of evidence to the contrary.
(See: People vs. Renegado, No. L-27031, May 31,1974,57 SCRA 275,
286)
Criminal intent and the will to commit a crime are always presumed to
exist on the part of the person who executes an act which the law punishes,
unless the contrary shall appear. (U.S. vs. Apostol,
14 Phil. 92, 93)
But the presumption of criminal intent does not arise from

the proof of the commission of an act which is not
unlawful.
U.S. vs. Catolico

(18 Phil. 504, 508)
Facts: The accused was a justice of the peace. He rendered

decisions in certain cases, each one for damages resulting from a breach
of contract, from which the defendants appealed. As required by law,
the defendants deposited P16.00 and a bond of f*50.00 for each case. It
43
Art. 3 FELONIES
appeared that the sureties on the said bonds were insolvent and that the
defendants did not present new bonds within the time fixed
by the accused as justice of the peace. Upon petition of the plaintiffs, the
accused dismissed the appeals and ordered said sums attached and
delivered to the plaintiffs in satisfaction of the judgment. The accused
was prosecuted for malversation (a felony punishable now under Art.
217).
Held: The act of the accused, in permitting the sums deposited
with him to be attached in satisfaction of the judgment rendered by him,
was not unlawful. Everything he did was done in good faith under the
belief that he was acting judiciously and correctly. The act of a person
does not make him a criminal, unless his mind be criminal.
The maxim is: actus non facit reum, nisi mens sit rea — a crime is not
committed if the mind of the person performing to act complained be
innocent. It is true that a presumption of criminal intent may arise from proof
of the commission of a criminal act; and the general rule is that if it is proved
that the accused committed the criminal act charged, it will be presumed that
the act was done with criminal intention and that it is for the accused to rebut
this presumption. But it must be borne in mind that the act from which such
presumption springs must be a criminal act. In the case at bar, the act was not
criminal.
Where the facts proven are accompanied by other facts which show that
the act complained of was not unlawful, the presumption of criminal intent
does not arise.
There is no felony by dolo if there is no intent.

The presumption of criminal intent from the commission of an unlawful
act may be rebutted by proof of lack of such intent.
Thus, a minor who married without parental consent, in violation of
Art. 475 of the old Penal Code which punished "any minor who shall contract
marriage without the consent of his or her parents," was not liable criminally,
because she proved that she acted without malice. The defendant minor
testified that she believed that she was born in 1879; that so her parents gave
her to understand ever since her tenderest age; and that she did not ask them
concerning her age, because they had already given her to so understand since
her childhood. The presumption of malice was rebutted by her testimony. One
cannot be convicted under Article 475 (similar to Art. 350 of the
Revised Penal Code) when by reason of a mistake of fact there does
43
not exist the intention to commit the crime. (U.S. vs. Penalosa, 1 Phil.
44
109)
Also, a person who suddenly got up in his sleep, left the room with a
bolo in his hand, and upon meeting his wife who tried to stop him, wounded
her in the abdomen and attacked others, is not criminally liable, because his
acts were not voluntary, for having acted in a dream; he had no criminal
intent. (People vs. Taneo, 58 Phil. 255)
People vs. Beronilla

(96 Phil. 566)
Facts: The accused was a military major of La Paz, Abra, in 1944.

He received an order from the regional commander of an infantry,
Philippine Army, operating as a guerrilla unit, to prosecute Arsenio
Borjal for treason and to appoint a jury of 12 bolomen. The jury found
Borjal guilty of the charge and the recommendation of the jury was
approved by the Headquarters of the guerrilla unit. For the execution of
Borjal, the accused was prosecuted for murder.
The accused acted upon orders of superior officers which turned
out to be illegal. As a military subordinate, he could not question the
orders of his superior officers. He obeyed the orders in good faith,
without being aware of their illegality, without any fault or negligence
on his part.
Held: Criminal intent was not established. To constitute a crime,
the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference
to duty or to consequences, as in law, is equivalent to criminal intent.
(U.S. vs. Catolico, 18 Phil. 507) The accused was acquitted.
Mistake of fact.
While ignorance of the law excuses no one from compliance therewith
(ignorantia legis non excusat), ignorance or mistake of fact relieves the accused
from criminal liability (ignorantia facti excusat).
Mistake of fact is a misapprehension of fact on the part of the person

who caused injury to another. He is not, however, criminally liable, because he
did not act with criminal intent.
An honest mistake of fact destroys the presumption of criminal intent
which arises upon the commission of a felonious act. (People
Art. 3 FELONIES
vs. Coching, et al., C.A., 52 O.G. 293, citing People vs. Oanis, 74 Phil.
257)
Requisites of mistake of fact as a defense:

1. That the act done would have been lawful had the facts been as
the accused believed them to be.
2. That the intention of the accused in performing the act should be
lawful.
3. That the mistake must be without fault or carelessness on the part
of the accused.
Lack of intent to commit a crime may be inferred from the

facts of the case.
The defendant swore to Civil Service Form No. 1 before a notary public
that he was never accused of a violation of any law before any court or
tribunal, when in truth and in fact he had been charged with the offense of
unjust vexation in a criminal case before the Justice of the Peace Court. He
was prosecuted for the crime of perjury, for having falsely sworn that he was
never accused of any offense. When he testified in his defense, the defendant
claimed that he answered "No" to the question whether he had been accused
of a violation of any law, because he relied on the opinion of the provincial
fiscal that unjust vexation does not involve moral turpitude and he thought it
was not necessary to mention it in Civil Service Form No. 1. It appeared that
he had been previously prosecuted twice for perjury for having answered
"No" to the same question, and he was acquitted in one case and the
information in the other was dismissed. It was held that in view of the factual
background of the case, the act of the defendant in answering "No" to the
question can be considered only as an error of judgment and did not indicate
an intention to commit the crime of perjury. The defendant was not liable for
the crime of
perjury, because he had no intent to commit the crime. (People vs. Formaran,
C.A., 70 O.G. 3786)
In mistake of fact, the act done would have been lawful,

had the facts been as the accused believed them to be.
In other words, the act done would not constitute a felony had the facts
been as the accused believed them to be.
46
FELONIES Art. 3
Thus, in the cases of U.S. vs. Penalosa and People vs. Beronilla, supra,
the accused in the first case believed that she was already of age when she
contracted marriage and the accused in the second case believed that the
orders of his superior officer were legal. Had they been the real facts, there
would not be any felony committed. But even if they were not the real facts,
since the accused acted in good faith, they acted without intent. Hence, their
acts were involuntary.
In mistake of fact, the act done by the accused would have constituted
(1) a justifying circumstance under Art. 11, (2) an absolutory cause, such as
that contemplated in Art. 247, par. 2, or (3) an involuntary act.
U.S. vs. Ah Chong

(15 Phil. 488)
Facts: Ah Chong was a cook in Ft. McKinley. He was afraid of bad

elements. One evening, before going to bed, he locked himself in his
room by placing a chair against the door. After having gone to bed, he
was awakened by someone trying to open the door. He called out twice,
"Who is there," but received no answer. Fearing that the intruder was a
robber, he leaped from his bed and called out again, "If you enter the
room I will kill you." But at that precise moment, he was struck by the
chair that had been placed against the door, and believing that he was
being attacked he seized a kitchen knife and struck and fatally wounded
the intruder who turned out to be his roommate.
Held: Ah Chong must be acquitted because of mistake of fact.
Had the facts been as Ah Chong believed them to be, he would have
been justified in killing the intruder under Article 11, paragraph 1, of the
Revised Penal Code, which requires, to justify the act, that there be —
(1) unlawful aggression on the part of the person killed, (2)
reasonable necessity of the means employed to prevent or repel it, and
(3) lack of sufficient provocation on the part of the person defending
himself. If the intruder was really a robber, forcing his way into the
room of Ah Chong, there would have been unlawful aggression on the
part of the intruder. There would have been a necessity on the part of
Ah Chong to defend himself and/or his home. The knife would have been
a reasonable means to prevent or repel such aggression. And Ah Chong
gave no provocation at all. Under Article 11 of the Revised Penal
47
Art. 3 FELONIES
Code, there is nothing unlawful in the intention as well as in the act of

the person making the defense.
(See: People vs. Mamasalaya, No. L-4911, Feb. 10,1953,92 Phil.

639, 654)
People vs. Oanis

(74 Phil. 257)
Facts: Chief of Police Oanis and his co-accused Corporal Galanta

were under instructions to arrest one Balagtas, a notorious criminal and
escaped convict, and if overpowered, to get him dead or alive.
Proceeding to the suspected house, they went into a room and on seeing
a man sleeping with his back towards the door, simultaneously fired at
him with their revolvers, without first making any reasonable inquiry as
to his identity. The victim turned out to be an innocent man, Tecson, and
not the wanted criminal.
Held: Both accused are guilty of murder.
Even if it were true that the victim was the notorious criminal, the
accused would not be justified in killing him while the latter was sleeping.
In apprehending even the most notorious criminal, the law does not
permit the captor to kill him. It is only when the fugitive from justice is
determined to fight the officers of the law who are trying to capture him that
killing him would be justified.
The mistake must be without fault or carelessness on the

part of the accused.
Ah Chong case and Oanis case distinguished.
In the Ah Chong case, there is an innocent mistake of fact without any
fault or carelessness on the part of the accused, because, having no time or
opportunity to make any further inquiry, and being pressed by circumstances
to act immediately, the accused had no alternative but to take the facts as they
then appeared to him, and such facts justified his act of killing the deceased.
In the Oanis case, the accused found no circumstances whatever which
would press them to immediate action. The person in the room being then
asleep, the accused had ample time and opportunity to ascertain his identity
without hazard to themselves, and could even effect a bloodless arrest if any
48
FELONIES Art. 3
reasonable effort to that end had been made, as the victim was unarmed.
This, indeed, is the only legitimate
course of action for the accused to follow even if the victim was really
Balagtas, as they were instructed not to kill Balagtas at sight, but to arrest,
and to get him dead or alive only if resistance or aggression is offered by him.
Hence, the accused in the Oanis case were at fault when they shot the
victim in violation of the instructions given to them. They
were also careless in not verifying first the identity of the victim.
Lack of intent to kill the deceased, because his intention

was to kill another, does not relieve the accused from
criminal responsibility.
That the accused made a mistake in killing one man instead of another
cannot relieve him from criminal responsibility, he having acted maliciously
and wilfully. (People vs. Gona, 54 Phil. 605)
In mistake of fact, the intention of the accused in

performing the act should be lawful.
Thus, in error in personae or mistake in the identity of the victim, the
principle of mistake of fact does not apply.
Example: A wanted to kill B by shooting him with a pistol.

Thinking that the person walking in dark alley was B, A shot the person.
It turned out that the person killed was C, the brother of A. A had no
intention to kill C. Since the act and intention of A in firing his pistol are
unlawful, A cannot properly invoke the principle of mistake of fact in his
defense.
No crime of resistance when there is a mistake of fact.

One who resists an arrest, believing that the peace officer is a bandit,
but who submits to the arrest immediately upon being informed by the peace
officer that he is a policeman, is not guilty of the crime of resistance to an
agent of the authorities under Art. 151 of the Revised Penal Code, because of
mistake of fact. (See U.S. vs.
Bautista, 31 Phil. 308)
When the accused is negligent, mistake of fact is not a

defense.
49
Art. 3 FELONIES
People vs. De Fernando

(49 Phil. 75)
Facts: The accused, a policeman, was informed that three convicts

had escaped. In the dark, he saw a person going up the stairs of a house,
carrying a bolo and calling for someone inside. The daughter of the
owner of the house was at that time with the accused who fired a shot in
the air. As the unknown person continued to ascend the stairs and
believing that he was one of the escaped convicts, the accused fired
directly at the man who turned out to be the nephew of the owner of the
house.
Held: He is guilty of homicide through reckless negligence. The
victim called for someone in the house. That fact indicated that he was
known to the owner of the house. The accused should have inquired
from the daughter of the owner of the house as to who the unknown
person might be.
The defense of mistake of fact is untenable when the accused is charged

with a culpable felony. In mistake of fact, what is involved is lack of intent on
the part of the accused. In felonies committed through negligence, there is no
intent to consider, as it is replaced by imprudence, negligence, lack of foresight
or lack of skill.
Criminal intent is necessary in felonies committed by

means of dolo.
Criminal intent is necessary in felonies committed by means of dolo
because of the legal maxims —
Actus non facit reum nisi mens sit rea, "the act itself does not make a
man guilty unless his intention were so."
Actus me invito factus non est meus actus, "an act done by me against my
will is not my act." (U.S. vs. Ah Chong, 15 Phil. 499)
Distinction between general intent and specific intent.

In felonies committed by dolus, the third element of voluntariness is a
general intent; whereas, in some particular felonies, proof of particular
specific intent is required. Thus, in certain crimes against property, there
must be the intent to gain (Art. 293 — robbery; Art. 308 — theft). Intent to
kill is essential in frustrated or attempted homicide (Art. 6 in relation to Art.
50
FELONIES Art. 3
249); in forcible abduction (Art. 342), the specific intent of lewd designs must
be proved.
When the accused is charged with intentional felony,

absence of criminal intent is a defense.
In the absence of criminal intent, there is no liability for intentional
felony. All reasonable doubt intended to demonstrate error and not crime
should be indulged in for the benefit of the accused. (People vs. Pacana, 47
Phil. 48)
If there is only error on the part of the person doing the act, he does not
act with malice, and for that reason he is not criminally liable for intentional
felony.
Criminal intent is replaced by negligence and imprudence

in felonies committed by means of culpa.
In felonies committed by means of culpa, since the doing of or failing to
do an act must also be voluntary, there must be freedom and intelligence on
the part of the offender, but the requisite of criminal intent, which is required
in felonies by dolo, is replaced by the requisite of imprudence, negligence, lack
of foresight, or lack of skill.
Such negligence or indifference to duty or to consequence is, in law,
equivalent to criminal intent. (U.S. vs. Catolico, 18 Phil. 507)
But in felonies committed by means of culpa, the mind of the accused is
not criminal. However, his act is wrongful, because the injury or damage
caused to the injured party results from the imprudence, negligence, lack of
foresight or lack of skill of the accused.
Therefore, in order that the act or omission in felonies committed by
means of fault or culpa may be considered voluntary, the following requisites
must concur:
(1) He must have FREEDOM while doing an act or omitting

to do an act;
(2) He must have INTELLIGENCE while doing the act or

omitting to do the act;
51
Art. 3
FELONIES
(3) He is IMPRUDENT, NEGLIGENT or LACKS FORESIGHT or SKILL

while doing the act or omitting to do the act.
In culpable felonies, the injury caused to another should

be unintentional, it being simply the incident of another
act performed without malice.
People vs. Guillen
(85 Phil. 307)
Facts: Guillen, testifying in his own behalf, stated that he

performed the act voluntarily; that his purpose was to kill the President,
but that it did not make any difference to him if there were some people
around the President when he hurled that bomb, because the killing of
those who surrounded the President was tantamount to killing the
President, in view of the fact that those persons, being loyal to the
President, were identified with the latter. In other words, although it
was not his main intention to kill the persons surrounding the President,
he felt no compunction in killing them also in order to attain his main
purpose of killing the President.
Held: The facts do not support the contention of counsel for
appellant that the latter is guilty only of homicide through reckless
imprudence in regard to the death of Simeon Varela and of less serious
physical injuries in regard to Alfredo Eva, Jose Fabio, Pedro Carillo
and Emilio Maglalang.
In throwing the hand grenade at the President with the intention
of killing him, the appellant acted with malice. He is therefore liable for
all the consequences of his wrongful act; for in accordance with Art. 4 of
the Revised Penal Code, criminal liability is incurred by any person
committing a felony (delito) although the wrongful act done be different
from that which he intended. In criminal negligence, the injury caused
to another should be unintentional, it being simply the incident of
another act performed without malice. (People vs. Sara, 55 Phil. 939) In
the words of Viada, "in order that an act may be qualified as
imprudence it is necessary that neither malice nor intention to cause
injury should intervene; where such intention exists, the act should be
qualified by the felony it has produced even though it may not have
been the intention of the actor to cause an evil of such gravity as that
produced." (Viada's comment on the Penal Code, Vol. 7, 5th ed., p. 7)
52
FELONIES Art. 3
And, as was held by this court, deliberate intent to do an unlawful act is
essentially inconsistent with the idea of reckless imprudence. (People vs.
Nanquil, 43 Phil. 232)
Mistake in the identity of the intended victim is not

reckless imprudence.
A deliberate intent to do an unlawful act is essentially inconsistent with
the idea of reckless imprudence. Where such an unlawful act is willfully done,
a mistake in the identity of the intended victim cannot be considered as
reckless imprudence. (People vs. Guillen, 85 Phil. 307, citing People vs.
Nanquil, 43 Phil. 232, and People vs. Guia, 54 Phil. 605)
A person causing damage or injury to another, without

malice or fault, is not criminally liable under the Revised
Penal Code.
Since felonies are committed either by means of deceit (dolo) or by
means of fault (culpa), if there is neither malice nor negligence on the part of
the person causing damage or injury to another, he is not criminally liable
under the Revised Penal Code.
In such case, he is exempt from criminal liability, because he causes an
injury by mere accident, without fault or intention of causing it. (Art. 12, par.
4, Revised Penal Code)
Illustration:
Three men, Ramos, Abandia and Catangay, were hunting deer at night.
Ramos carried a lantern fastened to his forehead. Abandia and Catangay
were following him. They saw a deer. Catangay whose gun was already cocked
and aimed at the deer stumbled against an embankment which lay between
him and Ramos. His gun was accidentally discharged, hitting and killing
Ramos. It was held that Catangay was not criminally liable because he had no
criminal intent and was not negligent. (U.S. vs. Catangay, 28 Phil. 490)
The act performed must be lawful.

In the foregoing illustration, the act of aiming the gun at the deer while
hunting is lawful, it not being prohibited by any law.
But the act of discharging a gun in a public place is unlawful.
(Art. 155, Revised Penal Code) In such case, if a person is injured as a result
of the discharge of the gun, the one discharging it in a public place is
criminally liable for the injury caused.
53
Art. 3 FELONIES
The third class of crimes are those punished by special
laws.
There are three classes of crimes. The Revised Penal Code defines and
penalizes the first two classes of crimes, (1) the intentional felonies, and (2) the
culpable felonies. The third class of crimes are those defined and penalized by
special laws which include crimes punished by municipal or city ordinances.
Dolo is not required in crimes punished by special laws.

When the crime is punished by a special law, as a rule, intent to commit
the crime is not necessary. It is sufficient that the offender has the intent to
perpetrate the act prohibited by the special law.
Intent to commit the crime and intent to perpetrate the act must be
distinguished. A person may not have consciously intended to commit a crime;
but he did intend to commit an act, and that act is, by the very nature of
things, the crime itself. (U.S. vs. Go Chico,
14 Phil. 128)
In the first (intent to commit the crime), there must be criminal intent;
in the second (intent to perpetrate the act), it is enough that the prohibited act
is done freely and consciously.
People vs. Bayona

(61 Phil. 181)
Facts: Defendant was driving his automobile on a road in front of

electoral precinct No. 4 in Barrio de Aranguel, Pilar, Capiz. He had a
revolver with him. He was called by his friend, Jose D. Benliro. He
alighted from his automobile and approached him to find out what he
wanted. He did not leave his revolver in the automobile, because there
were many people in the road in front of the polling place and he might
lose it. He was within the fence surrounding the polling place when Jose
E. Desiderio, a representative of the Department of the Interior, took
possession of the revolver defendant was carrying.
The Solicitor-General was for his acquittal.
Held: The law which defendant violated is a statutory provision,
and the intent with which he violated is immaterial. It may be
conceded that defendant did not intend to intimidate any elector or to
violate the law in any other way, but when he got out of his automobile
and carried his revolver inside of the fence surrounding the polling
place, he committed the act complained of, and he committed it
wilfully. The Election Law does not require for its violation that the
54
FELONIES Art. 3
offender has the intention to intimidate the voters or to interfere
otherwise with the election.
The rule is that in acts mala in se, there must be a criminal intent; but in
those mala prohibita, it is sufficient if the prohibited act was intentionally
done.
Since the Election Code prohibits and punishes the carrying of a
firearm inside the polling place, and that person did the prohibited act freely
and consciously, he had the intent to perpetrate the act.
No intent to perpetrate the act prohibited.

If a man with a revolver merely passes along a public road on election
day, within fifty meters of a polling place, he does not violate the provision of
the law in question, because he had no intent to perpetrate the act prohibited,
and the same thing would be true of a peace officer in pursuing a criminal;
nor would the prohibition extend to persons living within fifty meters of a
polling place, who merely clean or handle their firearms within their own
residences on election day, as they would not be carrying firearms within the
contemplation of the law. (People vs. Bayona, supra)
In those crimes punished by special laws, the act alone,

irrespective of its motives, constitutes the offense.
U.S. us. Siy Cong Bieng, et al.

(30 Phil. 577)
Facts: Co Kong, while in charge of appellant's store and acting as

his agent and employee, sold, in the ordinary course of business, coffee
which had been adulterated by the admixture of peanuts and other
extraneous substances.
Question: Whether a conviction under the Pure Food and Drugs
Act (No. 1655 of the Philippine Commission) can be sustained where it
appears that the sale of adulterated food products was made without
guilty knowledge of the fact of adulteration.
Held: While it is true that, as a rule and on principles of abstract
justice, men are not and should not be held criminally responsible for
acts committed by them without guilty knowledge and criminal or at
least evil intent, the courts have always recognized the power of the
legislature, on grounds of public policy and compelled by necessity, "the
greater master of things," to forbid in a limited class of cases the doing
55
Art. 3 FELONIES
of certain acts, and to make their commission criminal without regard to
the intent of the doer.
It is notorious that the adulteration of food products has grown to
proportions so enormous as to menace the health and safety of the
people. Ingenuity keeps pace with greed, and the careless and heedless
consumers are exposed to increasing perils. To redress such evils is a
plain duty but a difficult task. Experience has taught the lesson that
repressive measures which depend for their efficiency upon proof of the
dealer's knowledge or of his intent to deceive and defraud are of little
use and rarely accomplish their purposes. Such an emergency may
justify legislation which throws upon the seller the entire responsibility
of the purity and soundness of what he sells and compels him to know
and to be certain. (People vs. Kibler, 106 N.Y., 321, cited in the case of
U.S. vs. Go Chico, 14 Phil. 133)
Reasons why criminal intent is not necessary in crimes

made such by statutory enactment.
The accused was charged with a violation of Section 1 of Act No.
1696 of the Philippine Commission, which punishes any person who shall
expose to public view any flag, banner, emblem or device used during the late
insurrection in the Philippines. Even if the accused acted without criminal
intent, the lower court convicted him. In affirming the judgment of conviction
of the lower court, the Supreme
Court said —
"The display of a flag or emblem used, particularly within a
recent period, by the enemies of the Government tends to incite
resistance of governmental functions and insurrection against
governmental authority just as effectively if made in the best of good
faith as if made with the most corrupt intent. The display itself, without
the intervention of any other fact, is the evil. It is quite different from
that large class of crimes, made such by the common law or by statute,
in which the injurious effect upon the public depends upon the corrupt
intention of the person perpetrating the act. If A discharges a loaded
gun and kills B, the interest which society has in the act depends, not
upon B's death, but upon the intention with which A consummated the
act. If the gun was discharged intentionally, with the purpose of
accomplishing the death of B, then society has been injured and its
security violated; but if the gun was discharged accidentally
on the part of A, then society, strictly speaking, has no concern in the
matter, even though the death of B results. The reason for this is that A
does not become a danger to society and its institutions until he becomes
56
FELONIES Art. 3
a person with a corrupt mind. The mere discharge of the gun and the
death of B do not of themselves make him so. With those two facts must
go the corrupt intent to kill. In the case at bar, however, the evil to
society and to the Government does not depend upon the state of mind
of the one who displays the banner, but upon the effect which that
display has upon the public mind. In the one case the public is affected
by the intention of the actor; in the other by the act itself." (U.S. vs. Go
Chico, 14 Phil. 129)
When the doing of an act is prohibited by a special law, it is considered

that the act is injurious to public welfare and the doing of the prohibited act is
the crime itself.
Good faith and absence of criminal intent not valid

defenses in crimes punished by special laws.
It does not matter, for the validity of the conviction of Ongsod, that he is
the owner or borrower, as the proprietary concept of the possession can have
no bearing whatsoever on his guilt, within the intendment and purview of
Republic Act 4 (which amended Section 2692 of the Revised Administrative
Code and Commonwealth Act 56). And it is now beyond question that mere
unlicensed possession is sufficient to sustain a conviction of illegal possession
of firearms, regardless of the intent of the unlicensed holder, since the offense
is malum prohibitum punished by special law, and good faith and absence of
criminal intent are not valid defenses. (People vs. Orquijo, [C.A.] 60 O.G. 836)
(See: Lacson, Jr. vs. Posadas, Adm. Matter No. 74-MJ, July 30,
1976, 72 SCRA 168, 171)
Exceptions:
1. Several PC soldiers went to the house of the defendant and asked him if
he had in his possession any unlicensed
57
FELONIES Art. 3
firearm. The defendant readily answered that he had one but that said
unlicensed firearm was in his possession prior to his turning it over to the
Mayor of Taal in connection with the drive of the government in the
collection of loose firearms. Defendant told the PC soldiers that he
bought the firearm from a stranger with the purpose of selling it to the
PC who were paying for loose firearms. He even showed to the PC
soldiers a letter of the town mayor authorizing him to collect loose
firearms in his barrio.
Held: To implement the policy of the government on loose firearms,

it is imperative that the persons collecting and surrendering loose
firearms should have temporary and incidental possession thereof, for
how can one collect and deliver without temporarily laying his hands on
the firearms? It is for this reason that we believe that the doctrine of the
immateriality of animus possidendi should be relaxed in a certain way.
Otherwise, the avowed purpose of the government's policy cannot be
realized. Of course, it would be a different story if it is shown that the
possessor has held on to the firearm for an undue length of time when he
had all the chances to surrender it to the proper authorities. (People vs.
Landicho, [C.A.] 55 O.G. 842)
2. When neither of the accused had ever intended to commit the offense of
illegal possession of firearms (U.S. vs. Samson, 16 Phil. 323); when both
believed in good faith that as civilian guards under Councilor Asa, an
MIS agent and a superior officer in the Civilian Guard Organization,
and under the circumstances and facts of this case, they cannot be held
liable for the offense charged because they never had any intent of
violating the law. (People vs. Asa and Balbastro, [C.A.] 50 O.G. 5853,
citing 68 Corpus Juris 39)
3. Where the accused had a pending application for permanent permit to
possess a firearm, and whose possession was not unknown to an agent of
the law who advised the former to keep it in the meantime, any doubt as
to his claim should be resolved in his favor. (People vs. Mallari, [C.A.] 55
O.G. 1394)
57
4. Where appellant was duly appointed as civilian confidential agent

entrusted with a mission to make surveillance and effect the
killing or capture of a wanted person, and was authorized to
carry a revolver to carry out his mission, he is not criminally
liable for illegal possession of firearms.
(People vs. Lucero, 103 Phil. 500)
FELONIES
Note: In these cases, the accused had no license to possess the
firearms, but in view of the facts and circumstances, the
absence of intent to violate the law was considered in favor
of the accused.
Mala in se and mala prohibita, distinguished.

There is a distinction between crimes which are mala in se, or wrongful
from their nature, such as theft, rape, homicide, etc., and those that are mala
prohibita, or wrong merely because prohibited by statute, such as illegal
possession of firearms.
Crimes mala in se are those so serious in their effects on society as to call
for almost unanimous condemnation of its members; while crimes mala
prohibita are violations of mere rules of convenience designed to secure a more
orderly regulation of the affairs of society. (Bouvier's Law Dictionary, Rawle's
3rd Revision)
(1) In acts mala in se, the intent governs; but in those mala prohibita,
the only inquiry is, has the law been violated?
(People vs. Kibler, 106 N.Y., 321, cited in the case of U.S. vs. Go
Chico, 14 Phil. 132)
Criminal intent is not necessary where the acts are prohibited for
reasons of public policy, as in illegal possession of firearms. (People vs.
Conosa, C.A., 45 O.G. 3953)
(2) The term mala in se refers generally to felonies denned and
penalized by the Revised Penal Code. When the acts are
inherently immoral, they are mala in se, even if punished by
special laws. On the other hand, there are crimes in the Revised
Penal Code which were originally defined and penalized by special
laws. Among them are possession and use of opium, malversation,
brigandage, and libel.
The term mala prohibita refers generally to acts made criminal by
special laws.
Art. 3
When the acts are inherently immoral, they are mala in se,
even if punished under special law.
People vs. Sunico, et al.
(C.A., 50 O.G. 5880)
Facts: The accused were election inspectors and poll clerks whose
duty among others was to transfer the names of excess voters in other
59
Art. 3 FELONIES
precincts to the list of a newly created precinct. Several voters were
omitted in the list. Because their names were not in the list, some of them
were not allowed to vote. The accused were prosecuted for violation of
Sees. 101 and 103 of the Revised Election Code. The accused claimed
that they made the omission in good faith.
The trial court seemed to believe that notwithstanding the fact that
the accused committed in good faith the serious offense charged, the
latter are criminally responsible therefor, because such offense is malum
prohibitum, and, consequently, the act constituting the same need not be
committed with malice or criminal intent to be punishable.
Held: The acts of the accused cannot be merely mala prohibita
— they are mala per se. The omission or failure to include a voter's
name in the registry list of voters is not only wrong because it is
prohibited; it is wrong per se because it disenfranchises a voter and
violates one of his fundamental rights. Hence, for such act to be
punishable, it must be shown that it has been committed with malice.
There is no clear showing in the instant case that the accused
intentionally, willfully and maliciously omitted or failed to include in the
registry list of voters the names of those voters. They cannot be
punished criminally.
The Revised Election Code, as far as its penal provisions are concerned,
is a special law, it being not a part of the Revised Penal Code or its
amendments.
Intent distinguished from motive.

Motive is the moving power which impels one to action for a definite
result. Intent is the purpose to use a particular means to effect such result.
Motive is not an essential element of a crime, and, hence, need not be
proved for purposes of conviction. (People vs. Aposaga, No. L-32477, Oct. 30,
1981, 108 SCRA 574, 595)
An extreme moral perversion may lead a man to commit a crime
without a real motive but just for the sake of committing it. Or, the apparent
lack of a motive for committing a criminal act does not necessarily mean that
there is none, but that simply it is not known to us, for we cannot probe into
the depths of one's conscience where it may be found, hidden away and
inaccessible to our observation. (People vs. Taneo, 58 Phil. 255, 256)
One may be convicted of a crime whether his motive appears to be good
or bad or even though no motive is proven. A good motive does not prevent an
act from being a crime. In mercy killing, the painless killing of a patient who
has no chance of recovery, the motive may be good, but it is nevertheless
punished by law.
60
FELONIES
Motive, when relevant and when need not be established.
Where the identity of a person accused of having committed a crime is
in dispute, the motive that may have impelled its commission is very relevant.
(People vs. Murray, 105 Phil. 591, 598; People vs.
Feliciano, No. L-30307, Aug. 15, 1974, 58 SCRA 383, 393)
Generally, proof of motive is not necessary to pin a crime on the accused
if the commission of the crime has been proven and the evidence of
identification is convincing. (People vs. Alviar, No. L32276, Sept. 12, 1974, 59
SCRA 136, 160)
Motive is essential only when there is doubt as to the identity of the
assailant. It is immaterial when the accused has been positively identified.
(People vs. Gadiana, G.R. No. 92509, March 13,1991,195 SCRA 211, 214-215;
People vs. Mandapat, G.R. No. 76953, April 22, 1991, 196 SCRA 157, 165)
Where the defendant admits the killing, it is no longer necessary to
inquire into his motive for doing the act. (People vs. Arcilla, G.R.
No. L-11792, June 30, 1959)
Motive is important in ascertaining the truth between two antagonistic
theories or versions of the killing. (People vs. BoholstCaballero, No. L-23249,
Nov. 25,1974, 61 SCRA 180,191; People vs.
Lim, G.R. No. 86454, Oct. 18, 1990, 190 SCRA 706, 714-715; People vs. Tabije,
No. L-36099, 113 SCRA 191, 197)
Where the identification of the accused proceeds from an unreliable
source and the testimony is inconclusive and not free from doubt, evidence of
motive is necessary. (People vs. Beltran, No.
L-31860, Nov. 29, 1974, 61 SCRA 246, 254-255)
Art. 3
Where there are no eyewitnesses to the crime, and where suspicion is

likely to fall upon a number of persons, motive is relevant and significant.
(People vs. Melgar, No. L-75268, Jan. 29, 1988, 157
SCRA 718, 725)
If the evidence is merely circumstantial, proof of motive is essential.
(People vs. Oquifio, No. L-37483, June 24,1983,122 SCRA 797,808)
Proof of motive is not indispensable where guilt is otherwise established
by sufficient evidence. (People vs. Corpuz, 107 Phil. 44, 49)
While the question of motive is important to the person who committed
the criminal act, yet when there is no longer any doubt that the defendant was
the culprit, it becomes unimportant to know the exact reason or purpose for
61
Art. 3 FELONIES
the commission of the crime. (People vs. Feliciano, No. L-30307, Aug. 15, 1974,
58 SCRA 383, 393)
How motive is proved.

Generally, the motive is established by the testimony of witnesses on the
acts or statements of the accused before or immediately after the commission
of the offense. Such deeds or words may indicate the motive. (Barrioquinto vs.
Fernandez, 82 Phil. 642, 649) Motive proved by the evidence.
Appellant stabbed the deceased. It was established that there were two
suffocating smokes noticed during the progress of the religious service of the
Iglesia ni Cristo, which made appellant to go around. Certainly, the causing.of
those smokes, presumably by nonmembers, which disturbed and interrupted
the service, particularly at the time when the Minister was preaching, is
enough motive for any member of the sect to be offended thereby, particularly
appellant who was a member of some importance. (People vs. Ramirez, 104
Phil. 720, 726)
Disclosure of the motive is an aid in completing the proof

of the commission of the crime.
Thus, the fact that the accused had been losing in their business
operations indicated the motive and therefore the intent to commit arson for
the purpose of collecting the insurance on their stock of
merchandise. (U.S. vs. Go Foo Suy, 25 Phil. 187, 204)
But proof of motive alone is not sufficient to support a

conviction.
The existence of a motive, though perhaps an important consideration,
is not sufficient proof of guilt. (People vs. Marcos, 70 Phil. 468; People vs.
Martinez y Godinez, 106 Phil. 597) Mere proof of motive, no matter how
strong, is not sufficient to support a conviction if there is no reliable evidence
from which it may be reasonably deduced that the accused was the
malefactor. (People vs. Macatahgay, 107 Phil. 188,
194)
Even a strong motive to commit the crime cannot take the place of proof
beyond reasonable doubt, sufficient to overthrow the presumption of
innocence. Proof beyond reasonable doubt is the mainstay of our accusatorial
system of criminal justice. (People vs. Pisalvo, No. L-32886, Oct. 23, 1981, 108
SCRA 211, 226)
Lack of motive may be an aid in showing the innocence of

the accused.
62
FELONIES
In a case, the Supreme Court concluded that the defendant acted while
in a dream and his acts, with which he was charged, were not voluntary in the
sense of entailing criminal liability.
Under the special circumstances of the case, in which the victim was the
defendant's own wife whom he dearly loved, and taking into consideration the
fact that the defendant tried to attack also his father, in whose house and
under whose protection he lived, besides attacking Tanner and Malinao, his
guests, whom he himself invited as may be inferred from the evidence
presented, we find not only lack of motives for the defendant to voluntarily
commit the acts complained of, but also motives for not committing said acts.
(People vs. Taneo, 58 Phil. 255, 257)
Lack of motive to kill the deceased has been held as further basis for
acquitting the accused, where the lone testimony of the prosecution witness is
contrary to common experience and, therefore, incredible. (People vs.
Padirayon, No. L-39207, Sept. 25, 1975, 67
SCRA 135)
63
CRIMINAL LIABILITY Art. 4
Wrongful Act Different From That Intended
Art. 4. Criminal liability. — Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful act
done be different from that which he intended.
2. By any person performing an act w h i c h would be an offense against
persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual
means.
Application of Article 4.
Criminal liability is incurred by any person in the cases mentioned in
the two paragraphs of Article 4. This article has no reference to the manner
criminal liability is incurred. The manner of incurring criminal liability under
the Revised Penal Code is stated in Article 3, that is, performing or failing to
do an act, when either is punished by law, by means of deceit (with malice) or
fault (through negligence or imprudence).
One who commits an intentional felony is responsible for

all the consequences which may naturally and logically
result therefrom, whether foreseen or intended or not.
Ordinarily, when a person commits a felony with malice, he intends the
consequences of his felonious act. But there are cases where the consequences
of the felonious act of the offender are not intended by him. In those cases, "the
wrongful act done" is "different from that which he intended."
In view of paragraph 1 of Art. 4, a person committing a felony is
criminally liable although the consequences of his felonious act are not
intended by him.
Thus, where the death of the 6 year-old victim was brought about by the
rape committed by the accused, it is of no moment that she died by accident
when she hit her head on the pavement while struggling, because, having
performed an act constituting a felony, he is responsible for all the
consequences of said act, regardless of his intention. (People vs. Mario
Mariano, 75 O.G. 4802, No. 24, June
11, 1979)
Art. 4 CRIMINAL LIABILITY
64
One is not relieved from criminal liability for the natural consequences
of one's illegal acts, merely because one does not intend to produce such
consequences. (U.S. vs. Brobst, 14 Phil. 310)
Thus, one who fired his gun at B, but missed and hit C instead, is liable
for the injury caused to C, although the one who fired the
gun had no intention to injure C.
One who gave a fist blow on the head of D, causing the latter to fall with
the latter's head striking a hard pavement, is liable for the death of D, which
resulted although the one who gave the fist blow had no intention to kill D.
And one who stabbed another in the dark, believing that the latter was
E, when in fact he was G, is liable for the injury caused to G, although the one
who stabbed him had no intention to injure G.
Rationale of rule in paragraph 1 of Article 4.

The rationale of the rule in Article 4 is found in the doctrine that "el que
es causa de la causa es causa del mal causado" (he who is the cause of the cause
is the cause of the evil caused). (People vs. Ural, No. L-30801, March 27, 1974,
56 SCRA 138, 144)
IMPORTANT WORDS AND PHRASES IN PARAGRAPH 1 OF ART. 4.
1. "Committing a felony."
Paragraph 1 of Art. 4 says that criminal liability shall be incurred
by any person "committing a felony," not merely performing an act. A
felony is an act or omission punishable by the Revised Penal Code. If the
act is not punishable by the Code, it is not a felony. But the felony
committed by the offender should be one committed by means of dolo,
that is, with malice, because paragraph 1 of Art. 4 speaks of wrongful
act done "different from that which he intended."
If the wrongful act results from the imprudence, negligence, lack
of foresight or lack of skill of the offender, his liability should be
determined under Art. 365, which defines and penalizes criminal
negligence.
The act or omission should not be punished by a special law,
because the offender violating a special law may not have the intent to
do an injury to another. In such case, the wrongful act done could not be
different, as the offender did not intend to do any other injury.
Article 4, paragraph 1, is not applicable in this case.
65
Defendant, who was not a regular medical practitioner, tied a girl,
wrapped her feet with rags saturated with petroleum and thereafter set them
on fire causing injuries. His defense was that he undertook to render medical
assistance in good faith and to the best of his ability to cure her of ulcer. He
admitted applying petroleum but denied causing the burns. Held: While there
was no intention to cause an evil but to provide a remedy, accused was liable
for injuries thru imprudence. (U.S. vs. Divino, 12 Phil. 175)
Note: Defendant did not commit an intentional felony. If at all, he

committed illegal practice of medicine, which is punished by a
special law. Violation of a statute is proof of negligence or
imprudence. Defendant is liable for two offenses: (1) physical
injuries through imprudence; and (2) illegal practice of
medicine.
When a person has not committed a felony, he is not

criminally liable for the result which is not intended.
(a) Thus, one who, because of curiosity, snatched the bolo carried by the
offended party at his belt, and the latter instinctively caught the blade of
said bolo in trying to retain it, is not criminally liable for the physical
injuries caused, because there is no provision in the Revised Penal Code
which punishes that act of snatching the property of another just to
satisfy curiosity. (See
U.S. vs. Villanueva, 31 Phil. 412)
(b) Thus, also, one who tries to retain the possession of his bolo which was
being taken by another and because of the struggle, the tip of the bolo
struck and pierced the breast of a bystander, is not criminally liable
therefor, because the law allows a person to use the necessary force to
retain what belongs to him. (See
People vs. Bindoy, 56 Phil. 15)
People vs. Bindoy
(56 Phil. 15)
Facts: In a tuba wineshop in the barrio market, the accused
offered tuba to Pacas' wife; and as she refused to drink having already
66
done so, the accused threatened to injure her if she would not accept.
There ensued an interchange of words between her and the accused,
and Pacas stepped in to defend his wife, attempting to take away from
the accused the bolo he carried. This occasioned a disturbance which
attracted the attention of Emigdio Omamdam who lived near the
market. Emigdio left his house to see what was happening, while the
accused and Pacas were struggling for the bolo. In the course of this
struggle, the accused succeeded in disengaging himself from Pacas,
wrenching the bolo from the latter's hand towards the left behind the
accused, with such violence that the point of the bolo reached Emigdio
Omamdam's chest, who was then behind the accused. The accused was
not aware of Omamdam's presence in the place.
Held: There is no evidence to show that the accused injured the
deceased deliberately and with the intention of committing a crime. He
was only defending his possession of the bolo, which Pacas was trying to
wrench away from him, and his conduct was perfectly legal. The
accused should be acquitted.
Had the accused attempted to wound Pacas during the struggle, but
instead of doing so, he wounded Omamdam, he would have been liable for the
death of Omamdam, because in attempting to wound another, the accused
would be committing a felony, which is attempted homicide, if there is intent
to kill, under Art. 249 in relation to Art. 6.
2. "Although the wrongful act done be different from that which he

intended."
The causes which may produce a result different from that which
the offender intended are: (1) mistake in the identity of the victim; (2)
mistake in the blow, that is, when the offender intending to do an injury
to one person actually inflicts it on another; and (3) the act exceeds the
intent, that is, the injurious result is greater than that intended.
Under paragraph 1, Art. 4, a person committing a felony is still
criminally liable even if —
a. There is a mistake in the identity of the victim — error in
personae. (See the case of People vs. Oanis, 74 Phil. 257)
In a case, defendant went out of the house with the intention of
assaulting Dunca, but in the darkness of the evening, defendant mistook
Mapudul for Dunca and inflicted upon him a mortal wound with a bolo.
In this case, the defendant is
67
criminally liable for the death of Mapudul. (People vs. Gona,

54 Phil. 605)
b. There is a mistake in the blow — aberratio ictus.

Example: People vs. Mabugat, 51 Phil. 967, where the accused,
having discharged his firearm at Juana Buralo but because of lack of
precision, hit and seriously wounded Perfecta Buralo, it was held that the
accused was liable for the injury caused to the latter.
c. The injurious result is greater than that intended — praeter

intentionem.
Example: People vs. Cagoco, 58 Phil. 524, where the accused,
without intent to kill, struck the victim with his fist on
the back part of the head from behind, causing the victim to fall down
with his head hitting the asphalt pavement and resulting in the fracture
of his head, it was held that the accused was liable for the death of the
victim, although he had no intent to kill said victim.
People vs. Mabugat

(51 Phil. 967)
Facts: The accused and Juana Buralo were sweethearts. One day,
the accused invited Juana to take a walk with him, but the latter refused
him on account of the accused having frequently visited the house of
another woman. Later on, the accused went to the house of Cirilo Bayan
where Juana had gone to take part in some devotion.
There the accused, revolver in hand, waited until Juana and her niece,
Perfecta, came downstairs. When they went in the direction of their
house, the accused followed them. As the two girls were going upstairs,
the accused, while standing at the foot of the stairway, fired a shot from
his revolver at Juana but which wounded Perfecta, the slug passing
through a part of her neck, having entered the posterior region thereof
and coming out through the left eye. Perfecta did not die due to proper
medical attention.
Held: The accused is guilty of frustrated murder, qualified by
treachery, committed on the person of Perfecta Buralo.
In People vs. Tomotorgo, No. L-47941, April 30, 1985, 136

SCRA 238, the conduct of the wife of the accused aroused his ire and incensed
with wrath and his anger beyond control, he picked up a piece of wood and
68
started hitting his wife with it until she fell to the ground complaining of
severe chest pains. Realizing what he had done, he picked her up in his arms
and brought her home. Despite
his efforts to alleviate her pains, the wife died. Prosecuted for parricide, he
pleaded guilty and was allowed to establish mitigating circumstances. Passing
on his contentions, the Supreme Court held that the fact that the appellant
intended to maltreat his wife only or inflict physical injuries does not exempt
him from liability for the resulting and more serious crime of parricide, (pp.
242, 246)
To the same effect is People vs. Monleon, No. L-36282, Dec. 10,
1976, 74 SCRA 263, where it was held that the case is covered by Article 4 of
the Revised Penal Code which provides that criminal liability is incurred by
any person committing a felony although the wrongful act done be different
from that which he intended, because the maltreatment inflicted by the
accused on his wife was the proximate cause of her death. The accused in his
inebriated state had no intent to kill her. He was infuriated because his son
did not feed his carabao. He was provoked to castigate his wife because she
prevented him from whipping his negligent son. He could have easily killed
his wife had he really intended to take her life. He did not kill her outright, (p.
269)
Requisites of paragraph 1 of Art. 4.

In order that a person may be held criminally liable for a felony
different from that which he intended to commit, the following
requisites must be present:
a. That an intentional felony has been committed; and

b. That the wrong done to the aggrieved party be the direct, natural
and logical consequence of the felony committed by the offender.
(U.S. vs. Brobst, 14 Phil. 310, 319; U.S. vs. Mallari, 29 Phil. 14, 19)
That a felony has been committed.

Thus, in the cases of U.S. vs. Villanueva and People vs. Bindoy, supra,
the accused were not held criminally liable, because they were not committing
a felony when they caused the injury to another.
69
No felony is committed (1) when the act or omission is not punishable by the
Revised Penal Code, or (2) when the act is covered by any of the
justifying circumstances enumerated in Art. 11.
An act which is not punishable by the Revised Penal Code is attempting
to commit suicide. (Art. 253)
Therefore, if A, in attempting a suicide, jumped out of the window to kill
himself, but when he dropped to the ground he fell on an old woman who died
as a consequence, A is not criminally liable for intentional homicide. A was not
committing a felony when he attempted a suicide.
One who shoots at another in self-defense, defense of relative, defense of
a stranger, or in the fulfillment of duty is not committing a felony, the act
being justified. (Art. 11, Revised Penal Code)
Hence, if B, who was being fired at with a gun by C to kill him, fired his
pistol at the latter in self-defense, but missed him and instead hit and killed D,
a bystander, B is not criminally liable for the death of D. One acting in self-
defense is not committing a felony.
A policeman, who was pursuing to arrest an armed prisoner who had
just escaped from jail, fired his service pistol at the latter when he refused to
be captured. The slug fired from the pistol of the policeman, after hitting the
prisoner on his right leg, hit and seriously injured a passer-by. The policeman
is not criminally liable for the injury caused to the passer-by, because being in
the fulfillment of a duty he was not committing a felony.
Of course, the act of defense or fulfillment of duty must be exercised
with due care; otherwise, the accused will be liable for culpable felony.
People vs. Salinas

(C.A., 62 O.G. 3186)
Facts: In the afternoon of February 14, 1958, the three accused,

namely: Saturnino Salinas, Crisanto Salinas and Francisco Salinas,
together with two small boys by the name of Tony and Omong, went to
the place of Severino Aquino to get their horses which the latter caught
for having destroyed his corn plants. When Crisanto and the two boys
were already inside the house of Severino Aquino, Crisanto asked, with
signs of respect and in a nice way, Severino Aquino what had the horses
70
destroyed. Thereafter, Saturnino Salinas who was at that time in front
of the house of Severino Aquino in the yard told Severino Aquino to
come down from the house and he (Saturnino) will bolo him to pieces.
Upon hearing the words of Saturnino Salinas, Severino Aquino was
about to go downstairs but Crisanto held him on his waist. In his
struggle to free himself from the hold of Crisanto, he (Severino) moved
his body downwards thus Crisanto subsequently held Severino's neck.
At the moment Crisanto was holding Severino's neck, Mercuria Aquino
who was then sitting on a mat inside the said house stood up and,
carrying her one month old child Jaime Tibule with her left hand and
against her breast, approached Severino and Crisanto. Upon reaching
by the left side of Crisanto, Mercuria tried, with her right hand, to
remove the hand of Crisanto which held the neck of Severino but
Crisanto pulled Mercuria's right hand causing said Mercuria to fall
down over her child Jaime Tibule on the floor of the house and Jaime
Tibule was pinned on the floor by Mercuria's body.
The cause of death (of Jaime Tibule) was "internal hemorrhage
within the skull due to injury of the blood vessels in the parietal side of
the head due to an impact with a hard object."
Held: The accepted rule is that an offender is always liable for the
consequences of his criminal act even though the result be different from
what he intended. (Art. 4, Revised Penal Code) For such liability to exist,
two requisites are necessary, namely, (1) that a crime be committed, and
(2) that the wrong suffered by the injured party be a direct consequence
of the crime committed by the offender. Under the circumstances, it
cannot be said that Crisanto Salinas, in his efforts to prevent Severino
from going down the house to have bloody encounter with his father who
was in the yard, by taking hold of Severino and pulling or jerking the
right hand of Mercuria who tried to free her father from his hold,
committed or was committing a crime. Consequently, it cannot likewise
be said that the death of the child was the direct result of a crime which
Crisanto committed or was in the act of committing.
Any person who creates in another's mind an immediate

sense of danger, which causes the latter to do something
resulting in the latter's injuries, is liable for the resulting
injuries.
During a robbery in a passenger jeepney, one of the culprits told
the women passengers "to bring out their money and not to shout 'or
else there will be shots.'" One of the women jumped out of the jeepney.
Her head struck the pavement. She died as a consequence.
71
It was held that "if a man creates in another person's mind an

immediate sense of danger, which causes such person to try to escape,
and, in so doing, the latter injures himself, the man who creates such a
state of mind is responsible for the resulting injuries." (People vs.
Page, 77 SCRA 348, 355, citing People vs. Toling, L-27097, Jan. 17, 1975,
62 SCRA 17, 33)
The reason for the ruling is that when the culprit demanded money from
the women, threatening to shoot if they would not bring out their money, a
felony was being committed (i.e., at that stage of execution, attempted robbery
with intimidation which is punishable under Article 294, in relation to Article
6 and Article 51 of the Code).
The Toling case, supra, relying on U.S. vs. Valdez, 41 Phil. 497, quoted
the syllabus, thus: "if a person against whom a criminal assault is directed
reasonably believes himself to be in danger of death or great bodily harm and
in order to escape jumps into the water, impelled by the instinct of self-
preservation, the assailant is responsible for homicide in case death results by
drowning."
Wrong done must be the direct, natural and logical

consequence of felonious act.
It is an established rule that a person is criminally responsible for acts
committed by him in violation of the law and for all the natural and logical
consequences resulting therefrom. (U.S. vs. Sornito, 4
Phil. 357, 360; U.S. vs. Zamora, 32 Phil. 218, 226; People vs. Cornel,
78 Phil. 458, 261)
In the following cases, the wrong done is considered the direct, natural
and logical consequence of the felony committed, although
a. The victim who was threatened or chased by the accused with a

knife, jumped into the water and because of the strong current or
because he did not know how to swim he sank down and died of
drowning. (U.S. vs. Valdez, 41 Phil.
497; People vs. Buhay, 79 Phil. 372)
b. The victim removed the drainage from the wound which resulted
in the development of peritonitis which in turn caused his death,
it appearing that the wound caused by the accused produced
72
extreme pain and restlessness which Wrongful Act Different
From That Intended
made the victim remove it. (People vs. Quianson, 62 Phil.

162)
c. Other causes cooperated in producing the fatal result, as long as
the wound inflicted is dangerous, that is, calculated to destroy or
endanger life. This is true even though the immediate cause of the
death was erroneous or unskillful medical or surgical treatment.
This rule surely seems to have its foundation in a wise and
practical policy. A different doctrine would tend to give
immunity to crime and to take away from human life a salutary
and essential safeguard. Amid the conflicting theories of medical
men, and the uncertainties attendant upon the treatment of
bodily ailments and injuries, it would be easy in many cases of
homicide to raise a doubt as to the immediate cause of death, and
thereby to open wide the door by which persons guilty of the
highest crime might escape conviction and punishment. (13
R.C.L., 751, 752;
22 L.R.A., New Series, 841, cited in People vs. Moldes, 61 Phil. 4)
But where it clearly appears that the injury would not have caused death,
in the ordinary course of events, but would have healed in so many days and
where it is shown beyond all doubt that the death was due to the malicious or
careless acts of the injured person or a third person, the accused is not liable
for homicide. One is accountable only for his own acts and their natural or
logical consequences, and not for those which bear no relation to the initial
cause and are due, for instance, to the mistakes committed by the doctor in the
surgical operation and the treatment of the victim's wound. (Decision of the
Supreme Court of Spain, April 2,1903, cited by Viada)
d. The victim was suffering from internal malady.
Blow was efficient cause of death.

The deceased had a delicate constitution and was suffering from
tuberculosis. The accused gave fist blows on the deceased's right
hypochondrium, bruising the liver and producing internal hemorrhage,
resulting in the death of the victim. The accused was liable for homicide.
(People vs.
Illustre, 54 Phil. 594)
73
Blow accelerated death.

The deceased was suffering from internal malady. The accused gave fist
blows in the back and abdomen, producing inflammation of the spleen and
peritonitis, and causing death. The accused was liable for homicide, because
by his fist blows he produced the cause for the acceleration of the death of the
deceased. (People vs. Rodriquez, 23 Phil. 22)
Blow was proximate cause of death.

The deceased was suffering from heart disease. The accused stabbed the
deceased with a knife, but as the blade of
the knife hit a bone, it did not penetrate the thoracic cavity, but it produced
shock, resulting in the death of the victim. The accused was liable for
homicide, because the stabbing was the proximate cause of the death of the
deceased. (People vs. Reyes,
61 Phil. 341)
e. The offended party refused to submit to surgical operation.

The offended party is not obliged to submit to a surgical operation to
relieve the accused from the natural and ordinary results of his crime. (U.S.
vs. Marasigan, 27 Phil. 504)
f. The resulting injury was aggravated by infection.

(1) The accused wounded the offended party with a bolo. When the
offended party entered the hospital, no anti-tetanus injection was
given to him and the wounds became infected when he went out of
the hospital. Held: The accused is responsible for the duration of
the treatment and disability prolonged by the infection. (People
vs. Red, C.A., 43 O.G. 5072)
An accused is liable for all the consequences of his acts, and
the infection of a wound he has caused is one of the consequences
for which he is answerable. (People vs. Martir, 9 C.A. Rep. 204)
But the infection should not be due to the malicious act of
the offended party. (U.S. vs. De los Santos,
G.R. No. L-13309)
73

(2) Although the wounds might have been cured sooner than 58 days
had the offended party not been addicted to tuba drinking, this
fact does not mitigate the liability of the accused. (U.S. vs.
Bayutas, 31 Phil. 584)
(3) The accused attacked the deceased with a bolo. After the deceased
had fallen, the accused threw a stone which hit him on the right
clavicle. The wounds inflicted could not have caused the death of
the deceased. A week later, the deceased died of tetanus secondary
to the infected wound. Held: The accused is responsible for the
death of the deceased. (People vs. Cornel, 78 Phil. 418)
People vs. Quianson

(62 Phil. 162)
Facts: The accused took hold of a fireband and applied it to the neck of
the person who was pestering him. The victim also received from the hand of
the accused a wound in his abdomen below the navel. While undergoing
medical treatment, the victim took out the drainage from his wound and as a
result of the peritonitis that developed, he died. The accused claimed as a
defense that had not the deceased taken out the drainage, he would not have
died.
Held: Death was the natural consequence of the mortal wound inflicted.
The victim, in removing the drainage from his wound, did not do so voluntarily
and with knowledge that it was prejudicial to his health. The act of the victim
(removing the drainage from his wound) was attributed to his pathological
condition and state of nervousness and restlessness on account of physical
pain caused by the wound, aggravated by the contact of the drainage tube
with the inflamed peritoneum.
U.S. vs. Marasigan

(27 Phil. 504, 506)
Facts: The accused drew his knife and struck at Mendoza. In

attempting to ward off the blow, Mendoza was cut in the left hand. The
extensor tendon in one of the fingers was severed. As a result, the middle
finger of the left hand was rendered useless.
Held: Nor do we attach any importance to the contention of the accused
that the original condition of the finger could be restored by a surgical
operation. Mendoza is not obliged to submit to a surgical operation to relieve
the accused from the natural and ordinary results of his crime. It was his
voluntary act which disabled Mendoza and he must abide by the consequences
resulting therefrom without aid from Mendoza.
People vs. Reloj

75
(L-31335, Feb. 29,1972, 43 SCRA 526, 532)
Facts: The accused stabbed the victim with an ice pick. The victim
was brought to the hospital where a surgical operation was performed
upon him. Although the operation was successful and the victim seemed
to be in the process of recovery, he developed, five (5) days later, a
paralytic ileum — which takes place, sometimes, in consequence of the
exposure of the internal organs during the operation — and then died.
Held: It is contended that the immediate cause of the death of the
victim was a paralysis of the ileum that supervened five (5) days after
the stabbing, when he appeared to be on the way to full recovery. It has
been established, however, that the exposure of the internal organs in
consequence of a surgical operation in the abdomen sometimes results in
a paralysis of the ileum and that said operation had to be performed on
account of the abdominal injury inflicted by the accused. The accused is
responsible for the natural consequences of his own acts.
The felony committed must be the proximate cause of the

resulting injury.
Proximate cause is "that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred."
(Bataclan vs. Medina, 102 Phil. 181, 186, quoting 38 Am. Jur. 695)
Moreover, a person committing a felony is criminally liable for all the
natural and logical consequences resulting therefrom although the wrongful
act done be different from that which he intended. "Natural" refers to an
occurrence in the ordinary course of human life or events, while "logical"
means that there is a rational connection between the act of the accused and
the resulting injury or damage. The felony committed must be the proximate
cause of the resulting injury. Proximate cause is that cause which in natural
and continuous sequence, unbroken by an efficient intervening cause,
produces the injury, and without which the result would not have occured.
The proximate legal cause is that acting first and producing
76
the injury, either immediately, or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close
causal connection with its immediate prodecessor.
There must be a relation of "cause and effect," the cause being the
felonious act of the offended, the effect being the resultant injuries and/or
death of the victim. The "cause and effect" relationship is not altered or
changed because of the pre-existing conditions, such as the
pathological condition of the victim (las condiciones patologica del
lesionado); the predisposition of the offended party (la constitucion
fisica del herido); or the concomitant or concurrent conditions, such as the
negligence or fault of the doctors (la falta de medicos para
sister al herido); or the conditions supervening the felonies act such as tetanus,
pulmonary infection or gangrene.
The felony committed is not the proximate cause of the resulting injury
when:
a) there is an active force that intervened between the felony
committed and the resulting injury, and the active force is a
distinct act or fact absolutely foreign from the felonious act of the
accused; or
b) the resulting injury is due to the intentional act of the victim.

If a person inflicts a wound with a deadly weapon in such a manner as
to put life in jeopardy and death follows as a consequence of their felonious
act, it does not alter its nature or diminish its criminality to prove that other
causes cooperated in producing the factual result. The offender is criminally
liable for the death of the victim if his delictual act caused, accelerated or
contributed to the death of the victim. A different doctrine would tend to give
immunity to crime and take away from human life a salutary and essential
safeguard. (Quinto vs. Andres, G.R. No. 155791, March 16, 2005)
How to determine the proximate cause.

At about 2:00 o'clock in the morning while the bus was running very
fast on a highway, one of the front tires burst and the vehicle began to zigzag
until it fell into a canal and turned turtle. Four of its passengers could not get
out of the overturned bus. It appeared that as the bus overturned, gasoline
began to leak from the tank on the side of the chassis, spreading over and
permeating the body of the bus and the ground under and around it. About
ten men, one of them carrying a lighted torch, approached the overturned bus
77
to help those left therein, and almost immediately a fierce fire started, burning
the four passengers trapped inside it.
What is the proximate cause of the death of the four passengers, the
negligence of the driver resulting in the fall into the canal and overturning of
the bus, or the fire that burned the bus?
"x x x. It may be that ordinarily, when a passenger bus overturns, and
pins down a passenger, merely causing him physical injuries, if through some
event, unexpected and extraordinary, the overturned bus is set on fire, say, by
lightning, or if some highwaymen after looting the vehicle set it on fire, and
the passenger is burned to death, one might still contend that the proximate
cause of his death was the fire and not the overturning of the vehicle. But in
the present case and under the circumstances obtaining in the same, we do not
hesitate to hold that the proximate cause of the death of x x x (the four
passengers) was the overturning of the bus, this for the reason that when the
vehicle turned not only on its side but completely on its back, the leaking of
the gasoline from the tank was not unnatural or unexpected; that the coming
of the men with a lighted torch was in response to the call for help, made not
only by the passengers, but most probably, by the driver and the conductor
themselves, and that because it was very dark (about 2:30 in the morning), the
rescuers had to carry a light with them; and coming as they did from a rural
area where lanterns and flashlights were not available, they had to use a torch,
the most handy and available; and what was more natural than that said
rescuers should innocently approach the overturned vehicle to extend the aid
and effect the rescue requested from them. In other words, the coming of the
men with the torch was to be expected and was a natural sequence of the
overturning of the bus, the trapping of some of its passengers and the call for
outside help. What is more, the burning of the bus can also in part be
attributed to the negligence of the carrier, through its driver and its
conductor. According to the witnesses, the driver and the conductor were on
the road walking back and forth. They, or at least, the driver should and must
have known that in the position in which the overturned bus was, gasoline
could and must have leaked from the gasoline tank and soaked the area in and
around the bus, this aside from the fact that gasoline when Wrongful Act
Different From That Intended
spilled, specially over a large area, can be smelt and detected even from a
distance, and yet neither the driver nor the conductor would appear to have
cautioned or taken steps to warn the rescuers not to bring the lighted torch
too near the bus." That is negligence on the part of the agents of the carrier.
(Vda. de Bataclan, et al. vs. Medina, 102 Phil. 181, 186, 187)
78
People vs. Luces
(C.A.-G.R. No. 13011-R, July 15, 1955)
Facts: Accused Ramon Luces gave a fist blow on the stomach of

Feliciana, causing her to fall unconscious. She never regained
consciousness and a few minutes thereafter she died. In the autopsy
report, it was found that the probable cause of death was cardiac
failure. The accused contended that the fist blow was not the proximate
cause of Feliciana's death.
Held: Whether Feliciana died as a direct effect of the fist blow, or
as an outcome of the fall that followed the blow, or as a consequence of
the blow and the fall that caused her to lose consciousness, or of heart
failure due to shock caused by the blow and her fall to the ground, the
result would be the same — that the blow was the primary and
proximate cause of her death.
The gravity of the crime does not depend on the more or less
violent means used, but on the result and consequence of the same and if
the accused had not ill-treated the deceased she would not have died.
Known is the Latin maxim that "he who is the cause of the cause, is the
cause of the evil caused."
Note: Ill-treating another by deed without causing any injury, is a
felony under Art. 266 of this Code.
In the case of People vs. Martin, 89 Phil. 18, the accused, who strangled
his wife then suffering from heart disease, was found guilty of parricide even
if the death of his wife was the result of heart failure, because the heart failure
was due to the fright or shock caused by the strangling, which is a felony.
The following are not efficient intervening causes:

1. The weak or diseased physical condition of the victim, as when
one is suffering from tuberculosis or heart disease.
(People vs. Illustre and People vs. Reyes, supra)
79
2. The nervousness or temperament of the victim, as when a person

dies in consequence of an internal hemorrhage
brought on by moving about against the doctor's orders, because
of his nervous condition due to the wound inflicted by the accused.
(People vs. Almonte, 56 Phil. 54; See also People vs. Quianson, 62
Phil. 162)
3. Causes which are inherent in the victim, such as (a) the victim not
knowing how to swim, and (b) the victim being addicted to tuba
drinking. (People vs. Buhay and U.S. vs. Valdez, supra; U.S. vs.
Bayutas, supra)
4. Neglect of the victim or third person, such as the refusal by the
injured party of medical attendance or surgical operation, or the
failure of the doctor to give anti-tetanus injection to the injured
person. (U.S. vs. Marasigan and People vs. Red, supra)
5. Erroneous or unskillful medical or surgical treatment, as when
the assault took place in an outlying barrio where proper modern
surgical service was not available. (People vs. Moldes, 61 Phil. 1)
Those causes, not being efficient intervening causes, do not break the
relation of cause and effect — the felony committed and the resulting injury.
People vs. Piamonte, et al.

(94 Phil. 293)
Facts: One of the accused stabbed the injured party with a

hunting knife on October 28, 1951. The injured party was taken to the
hospital and was operated on. The operation did him well, but on
December 19, 1951, he contracted a sickness known as mucous colitis
which developed because of his weak condition. He died on December
28,1951.
Is the accused who stabbed the injured party liable for the latter's
death?
Held: The doctors who attended the injured party agreed that his
weakened condition which caused disturbance in the functions of his
intestines made it possible for him to contract mucous colitis, which
shows that while the wounds inflicted were not the immediate cause,
they were however the proximate cause of death. This is enough to
make the accused responsible for the crime charged.
80
Note: The charge was robbery with homicide. The homicide was
committed with malice.
When death is presumed to be the natural consequence of

physical injuries inflicted.
The death of the victim is presumed to be the natural consequence of the
physical injuries inflicted, when the following facts are established:
1. That the victim at the time the physical injuries were inflicted was
in normal health.
2. That death may be expected from the physical injuries inflicted.

3. That death ensued within a reasonable time. (People vs. Datu
Baginda, C.A., 44 O.G. 2287)
It having been established that the boy Jundam was in good health on
the morning of the incident; that he was whipped, spanked and thrown
against the post by his teacher, his breast hitting it; that he complained to his
mother about the oppressive pain, crying and massaging his breast all the
time; that he was found to have two suspicious bluish spots — a big one on the
breast and another one on the upper left arm; and that he vomitted blood
until he died three days afterwards; and there being no proof of any
intervening cause, the liability of the teacher for homicide necessarily follows
from the premises stated. (People vs. Tammang, 5 C.A. Rep. 145)
Note: Had it been proved, as claimed by the defense, that the boy died of
hydrophobia, that would have constituted an intervening cause,
and the accused would have been acquitted.
Not direct, natural and logical consequence of the felony

committed.
If the consequences produced have resulted from a distinct act or fact
absolutely foreign from the criminal act, the offender is
not responsible for such consequences. (People vs. Rellin, 77 Phil.
1038)
A person is not liable criminally for all possible consequences which

may immediately follow his felonious act, but only for such as are proximate.
81
Thus, where a person struck another with his fist and knocked him
down and a horse near them jumped upon him and killed him, the assailant
was not responsible for the death of that other person. (People vs. Rockwell,
39 Mich. 503)
This case should be distinguished from the case of People vs. Cagoco, 58
Phil. 524, supra.
In the Cagoco case, there was no active force that intervened between
the felonious act and the result. In the Rockwell case, there was an active force
(the jumping of the horse upon the deceased) which produced the result.
In the following cases, the injury caused is not the direct, logical and
necessary consequence of the felony committed, because the felony committed
is not the proximate cause of the resulting injury:
a. If slight physical injuries be inflicted by A upon B, and the latter
deliberately immerses his body in a contaminated cesspool, thereby
causing his injuries to become infected and serious, A cannot be
held liable for the crime of serious physical injuries. (U.S. vs. De
los Santos, G.R. No. 13309)
The act of B in deliberately immersing his body in a
contaminated cesspool, not the slight physical injuries inflicted by
A, is the proximate cause of the serious physical injuries.
b. The accused struck a boy on the mouth with the back of his hand.
Later, the boy died. Death might have been caused by fever
prevalent in the locality, not by the blow on the mouth. The
accused who gave the blow was not liable for the death of the
deceased. (People vs. Palalon, 49 Phil.
177)
c. The accused struck a child, who was seriously ill with fever for
three weeks, upon the thighs with a slipper, pushed and dragged
him, throwing him heavily on the mat spread on the floor. The
child died two days later.
As the true cause of the child's death was not proved, the accused
was convicted of physical injuries only. (U.S. vs. Embate, 3 Phil.
640)
d. Where medical findings lead to a distinct possibility that the
infection of the wound by tetanus was an efficient intervening
cause later or between the time the deceased was wounded to the
82
time of his death, the accused must be acquitted of the crime of
homicide. (Urbano vs. LAC, 157 SCRA 10)
The felony committed is not the proximate cause of the

resulting injury when —
1. There is an active force that intervened between the felony
committed and the resulting injury, and the active force is a
distinct act or fact absolutely foreign from the felonious act of the
accused; or
2. The resulting injury is due to the intentional act of the victim.
Is the accused responsible for the result, if there is a neglect of the wound or
there is an improper treatment of the wowid?
The neglect of the wound or its unskillful and improper treatment,
which are of themselves consequences of the criminal act and which might
naturally follow in any case, must in law be deemed to have been among those
consequences which were in contemplation of the guilty party and for which
he is to be held responsible. (26 Am. Jur., 193, cited in People vs. Morallos,
C.A., 50 O.G. 179)
Unskillful and improper treatment may be an active force, but it is not a
distinct act or fact absolutely foreign from the criminal act.
7s the accused criminally liable for the consequences which originate through
the fault or carelessness of the injured person ?
In the case of U.S. vs. Monasterial, 14 Phil. 391, it was held that "persons
who are responsible for an act constituting a crime are also liable for all the
consequences arising therefrom and inherent therein, other than those due to
incidents entirely foreign to the act executed, or which originate through the
fault or carelessness of the
83
Impossible Crimes
injured person, which are exceptions to the rule not arising in the present
case."
In the case of People us. Quianson, 62 Phil. 162, it is stated that one who
inflicts injury on another is deemed guilty of homicide if the injury
contributes to the death of the latter, "even if the deceased might have
recovered if he had taken proper care of himself, or submitted to surgical
operation."
It would seem that the fault or carelessness of the injured party, which
would break the relation of the felony committed and the resulting injury,
must have its origin from his malicious act or omission (U.S. vs. Navarro, 7
Phil. 713), as when the injured party had a desire to increase the criminal
liability of his assailant.
A supervening event may be the subject of amendment of

original information or of a new charge without double
jeopardy.
Where the charge contained in the original information was for slight
physical injuries because at that time the fiscal believed that the wound
suffered by the offended party would require medical attendance for a period
of only 8 days, but when the preliminary investigation was conducted, the
justice of the peace found that the wound would heal after a period of 30 days,
the act which converted the crime into a more serious one had supervened
after the filing of the original information and this supervening event can still
be the subject of amendment or of a new charge without necessarily
placing the accused in double jeopardy. (People vs. Petilla, 92 Phil.
395)
Impossible crimes.
The commission of an impossible crime is indicative of criminal
propensity or criminal tendency on the part of the actor. Such person is a
potential criminal. According to positivist thinking, the community must be
protected from anti-social activities, whether actual or potential, of the morbid
type of man called "socially dangerous person."
The penalty for impossible crime is provided in Article 59 of this Code.
The 2nd paragraph of Art. 4 defines the so-called impossible crimes
(impossible attempts).
Requisites of impossible crime:
84
Impossible Crimes
1. That the act performed would be an offense against persons or

property.
2. That the act was done with evil intent.
3. That its accomplishment is inherently impossible, or that the
means employed is either inadequate or ineffectual.
4. That the act performed should not constitute a violation of
another provision of the Revised Penal Code.
IMPORTANT WORDS AND PHRASES IN PARAGRAPH 2 OF

ART. 4.
1. "Performing an act which would be an offense against persons or
property."
In committing an impossible crime, the offender intends to
commit a felony against persons or a felony against property, and
the act performed would have been an offense against persons or
property. But a felony against persons or property should not be
actually committed, for, otherwise, he would be liable for that
felony. There would be no impossible crime to speak of.
Felonies against persons are:
a. Parricide (Art. 246)
b. Murder (Art. 248)
c. Homicide (Art. 249)
d. Infanticide (Art. 255)
e. Abortion (Arts. 256, 257, 258 and 259)
f. Duel (Arts. 260 and 261)
g. Physical injuries (Arts. 262, 263, 264, 265 and 266)
h. Rape (Art. 266-A)

Felonies against property are:
a. Robbery (Arts. 294, 297, 298, 299, 300, 302 and 303)
b. Brigandage (Arts. 306 and 307)
85
Impossible Crimes
c. Theft (Arts. 308, 310 and 311)
d. Usurpation (Arts. 312 and 313)
e. Culpable insolvency (Art. 314)
f. Swindling and other deceits (Arts. 315, 316, 317 and

318)
g. Chattel mortgage (Art. 319)
h. Arson and other crimes involving destruction (Arts.

320, 321, 322, 323, 324, 325 and 326)
i. Malicious mischief (Arts. 327, 328, 329, 330 and 331)

If the act performed would be an offense other than a felony against
persons or against property, there is no impossible crime.
That the act was done with evil intent.

Since the offender in impossible crime intended to commit an offense
against persons or against property, it must be shown that the actor
performed the act with evil intent, that is, he must have the intent to do an
injury to another.
A, who wanted to kill B, looked for him. When A saw B, he found out
that B was already dead. To satisfy his grudge, A stabbed B in his breast three
times with a knife. Is this an impossible crime?
No, because A knew that B was already dead when he stabbed the
lifeless body. There was no evil intent on the part of A, because he knew that
he could not cause an injury to B. Even subjectively, he was not a criminal.
2. "Were it not for the inherent impossibility of its accomplishment or
on account of the employment of inadequate or ineffectual
means."
In impossible crime, the act performed by the offender
cannot produce an offense against persons or property, because:
(1) the commission of the offense (against persons
or against property) is inherently impossible of accomplishment; or (2) the
means employed is either (a) inadequate; or (b) ineffectual.
a. "Inherent impossibility of its accomplishment."
86
Impossible Crimes
This phrase means that the act intended by the offender is by its
nature one of impossible accomplishment. (See Art. 59, Revised Penal
Code)
There must be either (1) legal impossibility, or (2) physical
impossibility of accomplishing the intended act.
Examples of impossible crimes which are punishable under the
Revised Penal Code are: (1) When one tries to kill another by putting in
his soup a substance which he believes to be arsenic when in fact it is
common salt; and (2) when one tries to murder a corpse. (People vs.
Balmores, 85 Phil. 493, 496)
(1) "Would be an offense against persons."

Example: A fired at B, wh" was lying on bed, not knowing
that B was dead hours before. In crime against persons, as would
have been in this case, it is necessary that the victim could be
injured or killed. A dead person cannot be injured or killed. Had B
been alive when he was shot, and as a consequence he died, the
crime committed by A would have been murder, a crime against
persons.
There is physical and legal impossibility in this example.
(2) "Would be an offense against property."
A, with intent to gain, took a watch from the pocket of B.
When A had the watch in his possession, he found out that it was
the watch which he had lost a week before. In other words, the
watch belonged to A. Is this an impossible crime?
87
Impossible Crimes
It is believed that it may be an impossible crime. The

act performed would have been theft had the watch been the
property of B. But there is a legal impossibility of
accomplishing it, because in theft, the personal property
taken must belong to another.
An employee who, having known the safe combination,

opens the safe in the office for the purpose of stealing money,
but who finds the safe empty, is guilty of an impossible crime.
The act performed would have been a crime of theft were it
not for the inherent impossibility of its accomplishment. If
there is no personal property that could be taken, it is
inherently impossible to commit theft.
b. "Employment of inadequate" means.

Example: A, determined to poison B, uses a small quantity of
arsenic by mixing it with the food given to B, believing that the
quantity employed by him is sufficient. But since in fact it is not
sufficient, B is not killed. The means employed (small quantity of
poison) is inadequate to kill a person.
Where the means employed is adequate.
But where the means employed is adequate and the result
expected is not produced, it is not an impossible crime, but a
frustrated felony.
Thus, if the quantity of poison used is sufficient to kill an
ordinary person, but the intended victim has developed strong
resistance to poison because he has been working in a mine, the
crime committed is frustrated murder.
c. Employment of "ineffectual means."

A tried to kill B by putting in his soup a substance which he
thought was arsenic when in fact it was sugar. B could not have been
killed, because the means employed was ineffectual. But A showed
criminal tendency and,
87
hence, he should be punished for it in accordance with Art. 4, par.

2, in relation to Art. 59.
WHEN ACTS ARE NOT COVERED BY LAW Art 5 AND IN
CASES OF EXCESSIVE PENALTIES
A, with intent to kill B, aimed his revolver at the back of the
latter, A, not knowing that it was empty. When he pressed the
trigger it did not fire. The means used by A is ineffectual.
In impossible crime the act performed should not

constitute a violation of another provision of the Code.
A, who knew that B owned and always carried a watch, decided to rob B
of said watch. When A met B for that purpose, B did not have the watch
because he forgot to carry it with him. Thinking that B had the watch with
him, A pointed his gun at him and asked for the watch. Finding that B did not
have the watch, A allowed B to go without further molestation. Is this an
impossible crime?
It is believed that A committed attempted robbery, not impossible crime.
There was intent to gain on the part of A when he decided to take the watch of
B at the point of gun. The crime of robbery with intimidation of person is not
produced, not because of the inherent impossibility of its accomplishment, but
because of a cause or accident (that B forgot to carry the watch with him)
other than A's own spontaneous desistance. (Art. 6, par. 3) Note also that A's
pointing his gun at B already constituted at least the crime of grave threats
under Art. 282, subdivision 2, of the Revised Penal Code. This is another
reason why it is not an impossible crime.
Purpose of the law in punishing the impossible crime.

To suppress criminal propensity or criminal tendencies. Objectively, the
offender has not committed a felony, but subjectively, he is a criminal.
Art. 5. Duty of the court in connection with acts which should be

repressed but which are not covered by the law, and in cases of excessive
penalties. — Whenever a court has knowledge of any act which it may d e e m
proper to repress and which is not punishable by law, it shall render the
proper decision and shall report to the Chief Executive, through the
Department of Justice, the reasons w h i c h induce the court to believe that
said act should be m a d e the subject of penal legislation.
In the s a m e w a y the court shall submit to the Chief Executive,
through the Department of Justice, such statement as m a y be d e e m e d
proper, without suspending the execution of the sentence, w h e n a strict
enforcement of the provisions of this Code would result in the imposition of a
clearly excessive penalty, taking into consideration the degree of malice and
the injury caused by the offense.
89
Art. 5 WHEN ACTS ARE NOT COVERED BY LAW AND IN
"In connection with acts which should be repressed but
which are not covered by the law."
The 1st paragraph of this article which contemplates a trial of a criminal
case requires the following:
1. The act committed by the accused appears not punishable by any
law;
2. But the court deems it proper to repress such act;

3. In that case, the court must render the proper decision by
dismissing the case and acquitting the accused;
4. The judge must then make a report to the Chief Executive,
through the Secretary of Justice, stating the reasons which induce
him to believe that the said act should be made the subject of
penal legislation.
Basis of par. 1, Art. 5.

The provision contained in paragraph 1 of Art. 5 is based on the legal
maxim "nullum crimen, nulla poena sine lege," that is, that there is no crime if
there is no law that punishes the act.
"In cases of excessive penalties."

The 2nd paragraph of Art. 5 requires that — 1. The court
after trial finds the accused guilty;
2. The penalty provided by law and which the court imposes for the
crime committed appears to be clearly excessive, because —
a. the accused acted with lesser degree of malice, and/
or;
b. there is no injury or the injury caused is of lesser gravity.
3. The court should not suspend the execution of the sentence.
4. The judge should submit a statement to the Chief Executive, through the
Secretary of Justice, recommending executive clemency.
Examples of the accused acting with lesser degree of malice:

In a case where the accused maltreated his wife in his inebriated
state, because she prevented him from whipping their negligent son, and
the maltreatment inflicted by the accused was the proximate cause of her
death, the Supreme Court applied Article 5 of the Revised Penal Code,
"considering that the accused had no intent to kill his wife and that her
death might have been hastened by lack of appropriate medical
90
attendance or her weak constitution." The penalty of reclusion perpetua,
prescribed by law for the crime committed, appears to be excessive.
(People vs.
Monleon, No. L-36282, Dec. 10, 1976, 74 SCRA 263, 269)
Father and son were convicted of qualified theft for stealing ten
tender coconut fruits from two coconut trees in a coconut plantation, for
the family's consumption. The court sentenced each of them to an
indeterminate penalty of from four (4) months and one (1) day of arresto
mayor to three (3) years, six (6) months and twenty-one (21) days of
prision correccional, according to Art. 310 of the Revised Penal Code. The
Court of Appeals held: In the light of the circumstances surrounding the
case, we are of the belief that the degree of malice behind the appellants'
felonious act does not warrant the imposition of so stiff a penalty as we
are now constrained to mete out under the law. We recommend,
therefore, that they be pardoned after they shall have served four (4)
months of the penalty so imposed. Let a copy of this decision be
forwarded to His Excellency, the President of the Philippines, through the
Honorable, the Secretary of Justice. (People vs. Espino, et al., CA-G.R.
No. 14029-R, Feb. 20, 1956)
Example of total absence of injury:

The defendant chief of police altered and falsified the
municipal police blotter and the book of records of arrests and the
return of the warrant of arrest and the bail bond of a person
charged with qualified seduction so as to make them show that the
said person was arrested and gave bond on the 13th day of
September, 1930, whereas, in truth and in fact, as said records
showed before said falsification, that person was arrested and
released on bond on the 6th day of September, 1930; and that
defendant justice of the peace conspired and cooperated with his
codefendant in making said falsification in order to meet the
administrative charges then pending against him. In other words,
those falsifications were committed to make it appear that there
was no delay in the preliminary investigation conducted by the
justice of the peace for qualified seduction. In this case, there is
apparent lack of malice and total absence of injury. (People vs.
Cabagsan and Montano, 57 Phil. 598)
Executive clemency recommended for the wife who killed

her cruel husband.
Her deceased husband not content with squandering away the family
substance, and not satisfied with keeping a mistress upon whom he must have
spent some of the money that properly belonged to his own family including
91
Art. 5 WHEN ACTS ARE NOT COVERED BY LAW AND IN
his wife, got into the habit of drinking until he became a habitual drunkard. *
* * On the very day that she killed her husband, according to her own
confession on which her conviction was based, he came home drunk, forthwith
laid hands on her, striking her on the stomach until she fainted, and when she
recovered consciousness and asked for the reason for the unprovoked attack,
he threatened to renew the beating. At the supper table instead of eating the
meal set before him, he threw the rice from his plate, thus adding insult to
injury. Then he left the house and when he returned he again boxed his wife,
the herein appellant. The violence with which appellant killed her husband
reveals the pent-up righteous anger and rebellion against years of abuse,
insult, and tyranny seldom heard of. Considering all these circumstances and
provocations including the fact as already stated that her conviction was based
on her own confession, the appellant is deserving of executive clemency, not of
full pardon but of a substantial if not a radical reduction or commutation of
her life sentence. (Montemayor, J., concurring in People vs. Canja, 86 Phil.
518, 522-523)
Executive clemency recommended because of the

severity of the penalty for rape.
The crime committed by the accused is simple rape. Before Article 335
of the Revised Penal Code was amended, simple rape was penalized by
reclusion temporal or twelve years and one day to twenty years. Republic Act
No. 4111 raised the penalty for simple rape to reclusion perpetua and made
qualified rape a capital offense. Taking notice of the rampancy of sexual
assaults, ensuing from the lawlessness and deterioration of morals occasioned
by the war, the lawmaking body sought to deter rapists by increasing the
penalty for rape. It is believed that in this case, after the accused shall have
served a term of imprisonment consistent with retributive justice, executive
clemency may be extended to him. (People vs. Manlapaz, No. L-41819, Feb.
28, 1979, 88 SCRA 704, 719)
The penalties are not excessive when intended to enforce

a public policy.
1. The rampant lawlessness against property, person, and even the
very security of the Government, directly traceable in large
measure to promiscuous carrying and use of powerful weapons,
justify imprisonment which in normal circumstances might
appear excessive. (People vs. Estoista, 93 Phil. 647, 654)
2. With regard to the fine of P5,000.00 imposed by the court for
selling a can of powdered Klim milk for P2.20 when the selling
price for it was PI.80, it should be considered that Congress
thought it necessary to repress profiteering with a heavy fine so
92
that dealers would not take advantage of the critical condition to
make unusual profits. (People vs.
Tiu Ua, 96 Phil. 738, 741)
Courts have the duty to apply the penalty provided by law.

A trial judge expressed in his decision his view against the wisdom of the
death penalty and refused to impose it. Held: It is the duty of judicial officers
to respect and apply the law, regardless of their private opinions.
It is a well-settled rule that the courts are not concerned with the
wisdom, efficacy or morality of laws. That question falls exclusively within the
province of the Legislature which enacts them and the Chief Executive who
approves or vetoes them. The only function of the judiciary is to interpret the
laws and, if not in disharmony with the Constitution, to apply them. (People
vs. Limaco, 88 Phil. 35)
A trial judge sentenced the accused to life imprisonment, although the
commission of the crime of robbery with homicide was attended by the
aggravating circumstances of nocturnity and in band, "in view of the attitude
of the Chief Executive on death penalty." Held: The courts should interpret
and apply the laws as they find them on the statute books, regardless of the
manner their judgments are executed and implemented by the executive
department. (People vs. Olaes, 105 Phil. 502)
Judge has the duty to apply the law as interpreted by the

Supreme Court.
If a Judge of a lower court feels, in the fulfillment of his mission of
deciding cases, that the application of a doctrine promulgated by the Supreme
Court is against his way of reasoning, or against his conscience, he may state
his opinion on the matter, but rather than disposing of the case in accordance
with his personal view, he must first think that it is his duty to apply the law
as interpreted by the Highest Court of the land, and that any deviation from a
principle laid down by the latter would unavoidably cause, as a sequel,
unnecessary inconveniences, delays and expenses to the litigants. (People vs.
Santos, et al, 104 Phil. 560)
Accused-appellant claims that the penalty of reclusion perpetua is too
cruel and harsh a penalty and pleads for sympathy. Courts are not the forum
to plead for sympathy. The duty of courts is to apply the law, disregarding
their feeling of sympathy or pity for an accused. DURA LEX SED LEX. The
remedy is elsewhere — clemency from the executive or an amendment of the
law by the legislative, but surely,
93
Art. 6 STAGES OF EXECUTION
Definition of Stages
at this point, this Court can but apply the law. (People vs. Amigo,
G.R. No. 116719, Jan. 18, 1996)
"When a strict enforcement of the provisions of this

Code."
The second paragraph of Art. 5 of the Revised Penal Code has no
application to the offense defined and penalized by a special law. (People vs.
Salazar, 102 Phil. 1184)
The reason for this ruling is that second paragraph of Art. 5 specifically
mentions "the provisions of this Code."
Art. 5 of the Revised Penal Code may not be invoked in cases involving
acts mala prohibita, because said article applies only to acts mala in se, or
crimes committed with malice or criminal intent. (People vs. Quebral, C.A., 58
O.G. 7399) The ruling is based on the phrase, "taking into consideration the
degree of malice."
Before the case of People vs. Salazar, supra, was decided by the Supreme
Court, it applied the second paragraph of Art. 5 in cases involving illegal
possession of firearms, a crime punishable by a special law (People vs.
Estoesta, 93 Phil. 654; People vs. Lubo, 101 Phil. 179), and to the offenses
punished by the Price Control Law.
(Ayuda vs. People, G.R. No. L-6149, April 12, 1954)
Art. 6. Consummated, frustrated, and attempted felonies. —

Consummated felonies, as well as those w h i c h are frustrated and attempted,
are punishable.
A felony is consummated w h e n all the elements necessary for its
execution and accomplishment are present; and it is frustrated w h e n the
offender performs all the acts of execution which would produce the felony as
a consequence but which, nevertheless, do not produce it by reason of causes
independent of the will of the perpetrator.
There is an attempt w h e n the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution w
h i c h should produce the felony by reason of some cause or accident other
than his o w n spontaneous desistance.
Definition of Stages
94
STAGES OF EXECUTION Art. 6
Consummated felony, defined.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present.
Frustrated felony, defined.

It is frustrated when the offender performs all the acts of execution
which would produce the felony as a consequence but which, nevertheless, do
not produce it by reason of causes independent of the will of the perpetrator.
Attempted felony, defined.

There is an attempt when the offender commences the commission of a
felony directly by overt acts, and does not perform all the acts of execution
which should produce the felony by reason of some cause or accident other
than his own spontaneous desistance.
Development of crime.
From the moment the culprit conceives the idea of committing a crime
up to the realization of the same, his act passes through certain stages.
These stages are: (1) internal acts; and (2) external acts.
1. Internal acts, such as mere ideas in the mind of a person, are not
punishable even if, had they been carried out, they would constitute a
crime.
Intention and effect must concur.
Mere intention producing no effect is no more a crime than a
mere effect without the intention is a crime.
Thus, if A intended to commit treason and joined a body of
armed men in the belief that they were Makapilis, when in fact they
were Guerrilleros, A was not liable for treason, despite his intent.
(Albert)
2. External acts cover (a) preparatory acts; and (b) acts of execution.
a. Preparatory acts — ordinarily they are not punishable.
Ordinarily, preparatory acts are not punishable. Hence,
proposal and conspiracy to commit a felony, which are only
preparatory acts, are not punishable, except when the law
provides for their punishment in certain felonies.
(Art. 8)
95
Attempted Felony
But preparatory acts which are considered in themselves, by
law, as independent crimes are punishable. Example: Possession of
picklocks under Art. 304. The possession of picklocks is a
preparatory act to the commission of robbery. (Arts. 299 and 302)
The other examples of preparatory acts are: (1) buying
poison or carrying a weapon with which to kill the intended
victim; (2) carrying inflammable materials to the place where a
house is to be burned, etc.
For merely doing any of these acts, a person is not liable for
attempted homicide or attempted arson, because they do not
constitute even the first stage of the acts of execution of those
crimes.
b. Acts of execution — they are punishable under the Revised Penal
Code.
The stages of acts of execution — attempted, frustrated, and
consummated — are punishable. (Art. 6)
The first stage of the acts of execution of a felony is the
attempted; the second stage, the frustrated; and the last stage, the
consummated.
In performing the acts of execution of a felony, the offender
may reach only the first stage or the second stage. In either case,
he does not produce the felony he intends to commit. But he is
liable for attempted felony or frustrated felony, as the case may
be.
Attempted felony.
There is an attempt when the offender begins the commission of a felony
directly by overt acts. He has not performed all the acts of execution which
should produce the felony.
Elements of attempted felony:
96
Attempted Felony
1. The offender commences the commission of the felony directly by

overt acts;
2. He does not perform all the acts of execution which should produce
the felony;
3. The offender's act is not stopped by his own spontaneous

desistance;
4. The non-performance of all acts of execution was due to cause or
accident other than his spontaneous desistance.
1. "Commences the commission of a felony directly by overt acts."

When is the commission of a felony deemed commenced directly
by overt acts? When the following two requisites are present:
(1) That there be external acts;

(2) Such external acts have direct connection with the crime intended
to be committed.
The external acts must be related to the overt acts of the

crime the offender intended to commit.
The external acts referred to in the first requisite must be related to the
overt acts of the crime the offender intended to commit. They should not be
mere preparatory acts, for preparatory acts do not have direct connection
with the crime which the offender intends to commit.
"Overt acts," defined.

An overt act is some physical activity or deed, indicating the intention to
commit a particular crime, more than a mere planning or preparation, which
if carried to its complete termination following its natural course, without
being frustrated by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense.
Preparatory acts and overt acts, distinguished.

If A bought poison from a drugstore, in preparation for the killing of B
by means of poison, such act is only a preparatory act. It is not an overt act,
because it has no direct connection with the crime of murder which A
97
Attempted Felony
intended to commit. The poison purchased may be used by A to kill rats or

insects. Hence, the act of buying poison did not disclose necessarily an
intention to kill a person with it.
But if A mixed the poison with the food intended for B, and the latter,
not knowing that it contained poison, put into his mouth a spoonful thereof,
the act of A was more than a mere planning or preparation for the
commission of murder. The buying of poison and mixing it with the food of B
who later put into his mouth part thereof to eat it, taken together, constituted
the overt acts of murder. The nature of the external act thus performed by A
clearly indicated that he intended to commit the crime of murder. If for some
reason or another, B threw away the food with poison from his mouth, A is
liable for attempted murder.
Note: Killing a person by means of poison is murder. (Art. 248,

R.P.C.)
Drawing or trying to draw a pistol is not an overt act of

homicide.
In a case, the evidence of the prosecution established the following facts:
While Tabago was talking with the Chief of Police, he made a motion to
draw his pistol, but the latter embraced him and prevented him from drawing
his pistol. Tabago then told his two companions to fire at the Chief of Police,
but they could not do so, because the Chief of Police was embracing Tabago.
One of his companions, Avelino Valle, fired a shot but the same was not aimed
at anybody.
Held: The accused cannot be convicted of the crime of attempted
homicide. The action of the accused in placing his hand on his revolver, which
was then on his waist, is indeed very equivocal and susceptible of different
interpretations. For example, it cannot be definitely concluded that the
attempt of the accused to draw out his revolver would have, if allowed to
develop or be carried to its complete termination following its natural course,
logically and necessarily ripened into a concrete offense, because it is entirely
possible that at any time during the subjective stage of the felony, the accused
could have voluntarily desisted from performing all the acts of execution and
which, had it happened, would completely exempt him from criminal
responsibility for the offense he intended to commit. (People vs. Tabago, et al,
C.A., 48 O.G. 3419)
98
Attempted Felony
To constitute attempted homicide the person using a firearm must fire

the same, with intent to kill, at the offended party, without however inflicting
a mortal wound on the latter.
Raising a bolo as if to strike the offended party with it is

not an overt act of homicide.
In the case of U.S. vs. Simeon, 3 Phil. 688, it was held that the crime
committed was only that of threatening another with a weapon (Art. 285, par.
1), because all that the accused did was to raise his bolo as if to strike or stab
the offended party with it. The latter shouted for help and ran away. No blow
was struck; nor was there proof of threats to kill or to do bodily harm.
If a blow with the bolo was struck and there was intent to kill on the
part of the accused, the act of striking the offended party with the bolo would
be an overt act of the crime of homicide.
Overt act may not be by physical activity.

There are felonies where, because of their nature or the manner of
committing them, the overt acts are not performed with bodily movement or
by physical activity. Thus, a proposal consisting in making an offer of money
to a public officer for the purpose of corrupting him is the overt act in the
crime of corruption of public officer. (U.S. vs. Gloria, 4 Phil. 341)
The external acts must have a direct connection with the

crime intended to be committed by the offender.
At an early dawn, A was surprised by a policeman while in the act of
making an opening with an iron bar on the wall of a store of cheap goods. At
that time the owner of the store was sleeping inside with another Chinaman. A
had only succeeded in breaking one board and in unfastening another from
the wall.
Is there an attempted robbery in this case?
No, because while it is true that the 1st requisite is present, that is,
there were external acts of breaking one board and unfastening another
from the wall of the store to make an opening through which
99
STAGES OF EXECUTION
Attempted Felony
Art. 6
A could enter the store, yet the 2nd requisite is not present, for such acts had
no direct connection with the crime of robbery by the use of force upon
things.
In case of robbery by the use of force upon things, in order that the
simple act of entering by means of force another person's dwelling may be
considered an attempt to commit this offense, it must be shown that the
offender clearly intended to take possession, for the purpose of gain, of some
personal property belonging to another.
The crime committed was attempted trespass to dwelling, because the
intention of the accused was obviously disclosed by his act of making an
opening through the wall, and that was to enter the store against the will of its
owner who was then living there. (People vs. Lamahang, 61 Phil. 703) It is only
an attempt, because A was not able to perform all the acts of execution which
should produce the felony of trespass to dwelling. Had A commenced entering
the dwelling through the opening, he would have performed all the acts
of execution.
What is an indeterminate offense?

It is one where the purpose of the offender in performing an act is not
certain. Its nature in relation to its objective is ambiguous.
In the case of People vs. Lamahang, supra, the final objective of the
offender, once he succeeded in entering the store, may be to rob, to cause
physical injury to the inmates, or to commit any other offense. In such a case,
there is no justification in finding the offender guilty of attempted robbery by
the use of force upon things.
The intention of the accused must be viewed from the

nature of the acts executed by him, and not from his
admission.
The intention of the accused must be ascertained from the facts and,
therefore, it is necessary that the mind be able to directly infer from them the
intention of the perpetrator to cause a particular injury.
In the case of People vs. Lizada, G.R. Nos. 143468-71, Jan. 24, 2003, the
Supreme Court held that:
"...The Supreme Court of Spain, in its decision of
100
Attempted Felony
March 21, 1892, declared that for overt acts to constitute an attempted
offense, it is necessary that their objective be known and established or such
that acts be of such nature that they themselves should obviously disclose the
criminal objective necessarily intended, said objective and finality to serve as
ground for designation of the offense."
Acts susceptible of double interpretation, that is, in favor as well as

against the accused, and which show an innocent as well as a punishable act,
must not and cannot furnish grounds by themselves for attempted crime.
(People vs. Lamahang, 61 Phil. 707)
In offenses not consummated, as the material damage is wanting, the
nature of the action intended cannot exactly be ascertained, but the same must
be inferred from the nature of the acts executed. (I Groizard, p. 99) The overt
acts leading to the commission of the offense are not punishable except when
they are aimed directly at its execution, and therefore they must have an
immediate and necessary relation to the offense. (I Viada, p. 47)
1. "Directly by overt acts."

The law requires that "the offender commences the commission of the
felony directly by overt acts."
Only offenders who personally execute the commission of a crime can be
guilty of attempted felony. The word "directly" suggests that the offender
must commence the commission of the felony by taking direct part in the
execution of the act.
Thus, if A induced B to kill C, but B refused to do it, A cannot be held
liable for attempted homicide, because, although there was an attempt on the
part of A, such an attempt was not done directly with physical activity. The
inducement made by A to B is in the nature of a proposal, not ordinarily
punished by law.
But if B, pursuant to his agreement with A, commenced the commission
of the crime by shooting C, with intent to kill, but missed and did not injure C,
both A and B are guilty of attempted felony, because of conspiracy. When
there is conspiracy, the rule is — the
act of one is the act of all.
2. "Does not perform all the acts of execution."

If the offender has performed all the acts of execution — nothing more
is left to be done — the stage of execution is that of a frustrated Art. 6
101
STAGES OF EXECUTION
Attempted Felony
felony, if the felony is not produced; or consummated, if the felony is
produced.
If anything yet remained for him to do, he would be guilty of an
attempted crime. (U.S. vs. Eduave, 36 Phil. 209)
Thus, as in the case of People vs. Lamahang, when the accused, for the
purpose of entering the dwelling of another broke one board and unfastened
another from the wall but before he could start entering
through the opening thus created he was arrested by a policeman, the crime
committed was only attempted trespass to dwelling, because there was
something yet for him to do, that is, to commence entering the dwelling
through that opening in order to perform all the acts of execution.
3. "By reason of some cause or accident."

In attempted felony, the offender fails to perform all the acts of
execution which should produce the felony because of some cause or accident.
Examples:
Cause.
A picked the pocket of B, inside of which there was a wallet
containing f*50.00. Before A could remove it from the pocket of B, the
latter grabbed A's hand and prevented him from taking it. In this case,
A failed to perform all the acts of execution, that is, taking the wallet,
because of a cause, that is, the timely discovery by B of the overt act of
A.
Accident.
A aimed his pistol at B to kill the latter, but when he pressed the
trigger it jammed and no bullet was fired from the pistol.
4. "Other than his own spontaneous desistance."

If the actor does not perform all the acts of execution by reason of his
own spontaneous desistance, there is no attempted felony. The law does not
punish him.
Reason:
It is a sort of reward granted by law to those who, having one foot
on the verge of crime, heed the call of their conscience and return to the
path of righteousness. (Viada, Cod. Pen., 3536)
102
Attempted Felony
One who takes part in planning a criminal act but desists in its
actual commission is exempt from criminal liability. For after taking
part in the planning, he could have desisted from taking part in the
actual commission of the crime by listening to the call of his conscience.
(People vs. Villacorte, No. L-21860, Feb. 28, 1974, 55 SCRA 640, 654)
The desistance may be through fear or remorse. (People vs.
Pambaya, See 60 Phil. 1022) It is not necessary that it be actuated by a good
motive. The Code requires only that the discontinuance of the crime comes
from the person who has begun it, and that he stops of his own free will.
(Albert)
The desistance should be made before all the acts of

execution are performed.
A stole a chicken under the house of B one evening. Realizing that what
he did was wrong, A returned the chicken to the place under the house of B.
Since the crime of theft was already consummated, the return of the stolen
property does not relieve A of criminal responsibility. A had already
performed all the acts of execution which produced the crime of theft before
he returned the chicken.
A attacked and wounded B in the abdomen with a sharp-edged weapon,
causing a wound serious enough to have produced death. A was about to
assault B again; but this time, A desisted and left B. B was taken to the
hospital by another person. Because of the timely and skillful medical
treatment by a physician, B did not die. It will be noted that when A desisted,
he had already inflicted a mortal wound on B, which could have produced his
death were it not for the timely intervention of a physician. A is liable for
frustrated homicide.
The desistance which exempts from criminal liability has

reference to the crime intended to be committed, and has
no reference to the crime actually committed by the
offender before his desistance.
A, with intent to kill, fired his pistol at B, but did not hit the latter. B
cried and asked A not to shoot him. A desisted from firing his pistol again at
B. Is A criminally liable?
Art. 6
103
STAGES OF EXECUTION
Attempted Felony
Yes, not for attempted homicide because he desisted before he could
perform all the acts of execution, but for grave threats which was already
committed by him when he desisted.
It must be borne in mind that the spontaneous desistance of a
malefactor exempts him from criminal liability for the intended crime but it
does not exempt him from the crime committed by him before his desistance.
(People vs. Lizada, G.R. Nos. 143468-72, Jan. 24,2003)
Illustration of a case where the accused inflicted injury.

The issue before the court was: Should an accused who admittedly shot
the victim but is shown to have inflicted only a slight wound be held
accountable for the death of the victim due to a fatal
wound caused by his co-accused? Held: The slight wound did not cause the
death of the victim nor materially contribute to it. His liability should
therefore be limited to the slight injury he caused. However, the fact that he
inflicted a gunshot wound on the victim shows the intent to kill. The use of a
gun fired at another certainly leads to no other conclusion than that there is
intent to kill. He is therefore liable for the crime of attempted homicide and
not merely for slight physical injury. (Araneta, Jr. vs. Court of Appeals, G.R.
No. 43527, July 3, 1990, 187 SCRA 123, 126, 133-134)
Subjective phase of the offense.

In attempted felony, the offender never passes the subjective phase of the
offense.
Definition of subjective phase of the offense.

It is that portion of the acts constituting the crime, starting from the
point where the offender begins the commission of the crime to that point
where he has still control over his acts, including their (acts') natural course.
If between these two points the offender is stopped by any cause outside
of his own voluntary desistance, the subjective phase has not been passed and
it is an attempt. If he is not so stopped but continues until he performs the last
act, it is frustrated, provided the crime is not produced. The acts then of the
offender reached the objective phase of the crime.
104
Frustrated Felony
Thus, if A, with intent to kill, mixes poison in the soup intended for B,
and B begins to take into his mouth a spoonful of it, until this
point, A can still prevent the poisoning of B by voluntarily desisting and telling
B to throw away the substance from his mouth as it contains poison. But from
the moment B swallows it, A has no more control over his acts. The poison is
now in B's stomach and it will require the intervention of a physician to
prevent the poisoning of
B.
If because of the intervention of the physician, B did not die, A will be

liable for frustrated murder. The acts performed by A, following their natural
course, passed from the subjective phase to the objective phase of the crime.
Frustrated felony.
Elements:
1. The offender performs all the acts of execution;
2. All the acts performed would produce the felony as a consequence;
3. But the felony is not produced;
4. By reason of causes independent of the will of
the perpetrator.
The requisites of a frustrated felony are: (1) that the offender has
performed all the acts of execution which would produce the felony; and (2)
that the felony is not produced due to causes independent of the perpetrator's
will. (People vs. Orita, G.R. No. 88724, April 3,1990, 184 SCRA 105,113)
IMPORTANT WORDS AND PHRASES.

1. "Performs all the acts of execution."
In frustrated felony, the offender must perform all the acts of execution.
Nothing more is left to be done by the offender, because he has performed the
last act necessary to produce the crime. This element distinguishes frustrated
felony from attempted felony. In attempted felony, the offender does not
perform all the acts of execution. He does not perform the last act necessary to
produce the crime. He merely commences the commission of a felony directly
by overt acts.
Art. 6
105
STAGES OF EXECUTION
Frustrated Felony
Thus, if A, with intent to kill, fires his gun at B, the discharge of the gun
is only an overt act. If the slug fired from the gun misses B or the wound
inflicted on B is not mortal, the last act necessary to produce the crime of
homicide is not yet performed by A. But if the wound inflicted is mortal, that
is, sufficient to cause death, A performs the last act. If no medical attendance
is given, B would surely die. In homicide or murder, the crime is
consummated if the victim dies. If the victim survives, the crime is frustrated.
(See U.S. vs. Eduave, 36 Phil. 209)
The Supreme Court in certain cases has emphasized the

belief of the accused.
People vs. Sy Pio
(94 Phil. 885)
Facts: The accused entered a store and once inside, he fired his
.45 caliber pistol at the Chinaman Sy who was hit fatally. Kiap who was
in the store asked him why he fired the shot and without answering him,
the accused fired at Kiap, hitting him on the right shoulder. Upon being
hit, Kiap immediately ran behind the store to hide and he heard the
accused fire at several other directions before he ran away. The wound
of Kiap healed in 20 days and was inflicted on the part of his body which
could not have produced his death. For shooting Kiap, the accused was
prosecuted for and declared guilty of frustrated murder in the Court of
First Instance.
Held: The fact that Kiap was able to escape, which the accused
must have seen, must have produced in the mind of the accused the belief
that he was not able to hit his victim at a vital part of the body. In other
words, the accused knew that he had not actually performed all the acts
of execution necessary to kill his victim.
The accused is guilty of attempted murder, because he did not
perform all the acts of execution, actual and subjective, in order that the
purpose and intention that he had to kill his victim might be carried out.
In other cases, the Supreme Court stated —

Deadly weapons were used, blows were directed at the vital parts of the
body, the aggressors stated their purpose to kill and thought they had killed.
The subjective phase of the crime was entirely passed, and subjectively
speaking, the crime was complete. The felony is not produced by reason of
causes independent of the will of the perpetrators; in this instance, the playing
106
Frustrated Felony
possum by the victim, that is, he escaped death from the aggressors by the
ruse of feigning death. (People vs. Dagman, 47 Phil. 770)
The defendant believed that he had performed all of the acts necessary
to consummate the crime of murder, and, therefore, of his own will, desisted
from striking further blows. He believed that he had killed Keng Kin. Death
did not result for reasons entirely apart from the will of the defendant. This
surely stamps the crime as frustrated murder. If, after the first blow, someone
had rushed to the assistance of Keng Kin and by his efforts had prevented the
accused from proceeding further in the commission of the crime, the
defendant not believing that he had performed all of the acts necessary to
cause death, he would have been guilty of attempted murder. (U.S. vs. Lim
San, cited in People vs. Dagman, 47 Phil. 771)
The aggressor stated his purpose to kill, thought he had killed, and threw
the body into the bushes. When he gave himself up, he declared that he had
killed the complainant. But as death did not result, the aggressor was guilty of
frustrated murder. (U.S. vs. Eduave, 36 Phil. 210)
The belief of the accused need not be considered. What should be
considered is whether all the acts of execution performed by the offender
"would produce the felony as a consequence."
In crimes against persons, as homicide, which requires the victim's
death to consummate the felony, it is necessary for the frustration of the same
that a mortal wound be inflicted, because then the wound could produce the
felony as a consequence. (People vs. Guihama, et al., 13 C.A. Rep. 557)
In the following cases, the stage of execution was held to

be frustrated, because the wound inflicted was mortal:
a. People vs. Honrada, 62 Phil. 112, where the accused stabbed the
offended party in the abdomen, penetrating the liver, and in the
chest. It was only the prompt and skillful medical treatment
which the offended party received that saved his life.
b. People vs. Mercado, 51 Phil. 99, where the accused wounded the
victim in the left abdomen with a sharp-edged weapon,
107
Frustrated Felony
causing a wound in the peritonial cavity, serious enough to have

produced death.
c. People vs. David, 60 Phil. 93, where the accused in firing his
revolver at the offended party hit him in the upper side of the
body, piercing it from side to side and perforating the lungs. The
victim was saved due to adequate and timely intervention of
medical science.
In the following cases, the stage of execution was held to

be attempted, because there was no wound inflicted or the
wound inflicted was not mortal.
a. U.S. vs. Bien, 20 Phil. 354, where the accused threw a Chinaman
into the deep water, and as the Chinaman did not know how to
swim, he made efforts to keep himself afloat and seized the
gunwale of the boat, but the accused tried to loosen the hold of the
victim with the oar. The accused was prevented from striking the
latter by other persons. Since the accused had the intent to kill the
offended party, the former actually committed attempted
homicide against the latter.
b. People vs. Kalalo, et al., 59 Phil. 715, where the accused fired four
successive shots at the offended party while the latter was fleeing
to escape from his assailants and save his own life. Not having hit
the offended party, either because of his poor aim or because his
intended victim succeeded in dodging the shots, the accused failed
to perform all the acts of execution by reason of a cause other than
his spontaneous desistance.
Even if no wound was inflicted, the assailant may be
convicted of attempted homicide, provided he had the intent to kill
the offended party. (People vs. Aban, CA-G.R.
No. 10344-R, November 30, 1954)
c. People vs. Domingo, CA-G.R. No. 14222-R, April 11,1956, where
two physicians called to the witness stand by the prosecution could
not agree that the wounds inflicted upon the complainant would
cause death. One of them, Dr. Rotea, testified that the wounds
were not serious enough to produce death even if no medical
assistance had been given to the offended party.
108
Frustrated Felony
d. People vs. Somera, et al., 52 O.G. 3973, where the head of the
offended party was merely grazed by the shot which hit him, the
wound being far from fatal.
2. "Would produce the felony as a consequence."

All the acts of execution performed by the offender could have produced
the felony as a consequence.
Thus, when A approached B stealthily from behind and made a
movement with his right hand to strike B on the back with a deadly knife, but
the blow, instead of reaching the spot intended, landed on the frame of the
back of the chair on which B was sitting at the time and did not cause the
slightest physical injury on B, the stage of execution should have been that of
attempted murder only, because without inflicting a deadly wound upon a vital
spot of which B should have died, the crime of murder would not be produced
as a consequence.
The case of People vs. Borinaga, 55 Phil. 433, is now superseded by the
case of People vs. Kalalo, 59 Phil. 715, which sustains the above opinion. In
crimes against persons, such as murder, which require that the victim should
die to consummate the felony, it is necessary for the frustration of the same
that a mortal wound is inflicted.
Thus, in his dissenting opinion in the case of People vs. Borinaga, supra,
Justice Villareal said: "It is true that the frame of the back of the chair stood
between the deadly knife and the back of Mooney; but what it prevented was
the wounding of said Mooney in the back and not his death, had he been
wounded. It is the preventing of death by causes independent of the will of the
perpetrator, after all the acts of execution had been performed, that
constitutes frustrated felony (of murder), and not the preventing of the
performance of all the acts of execution which constitute the felony."
3. "Do not produce it."

In frustrated felony, the acts performed by the offender do not produce
the felony, because if the felony is produced it would be consummated.
4. "Independent of the will of the perpetrator."

Even if all the acts of execution have been performed, the crime may
not be consummated, because certain causes may prevent its consummation.
These certain causes may be the intervention of third persons who prevented
the consummation of the offense or may be
109
Frustrated Felony
due to the perpetrator's own will.

If the crime is not produced because of the timely intervention of a third
person, it is frustrated.
If the crime is not produced because the offender himself prevented its
consummation, there is no frustrated felony, for the 4th element is not present.
Note that the 4th element says that the felony is not produced
"by reason of causes independent of the will of the perpetrator." Hence, if the
cause which prevented the consummation of the offense was the perpetrator's
own and exclusive will, the 4th element does not exist.
Problem:
A doctor conceived the idea of killing his wife, and to carry out his plan,
he mixed arsenic with the soup of his victim. Immediately after the victim took
the poisonous food, the offender suddenly felt such a twinge of conscience that
he himself washed out the stomach of the victim and administered to her the
adequate antidote. Would this be a frustrated parricide? Certainly not, for
even though the subjective phase of the crime had already been passed, the
most important requisite of a frustrated crime,
i.e., that the cause which prevented the consummation of the offense be
independent of the will of the perpetrator, was lacking. (Guevara)
The crime cannot be considered attempted parricide, because the doctor
already performed all the acts of execution. At most, the crime committed
would be physical injuries, as the poison thus administered, being an injurious
substance, could cause the same. The intent to kill which the doctor
entertained in the beginning disappeared when he prevented the poison from
producing the death of his wife.
Is there frustration due to inadequate or ineffectual

means?
Such a frustration is placed on the same footing as an impossible attempt.
(Albert)
110
Frustrated Felony
Frustrated felony distinguished from attempted felony.
1. In both, the offender has not accomplished his criminal purpose.
2. While in frustrated felony, the offender has performed all the acts
of execution which would produce the felony as a consequence, in
attempted felony, the offender merely commences the commission
of a felony directly by overt acts and does not perform all the acts
of execution.
In other words, in frustrated felony, the offender has
reached the objective phase; in attempted felony, the offender has
not passed the subjective phase.
The essential element which distinguishes attempted from frustrated
felony is that, in the latter, there is no intervention of a foreign or extraneous
cause or agency between the beginning of the consummation of the crime and
the moment when all of the acts have been performed which should result in
the consummated crime; while in the former there is such intervention and the
offender does not arrive at the point of performing all of the acts which should
produce the crime. He is stopped short of that point by some cause apart from
his own voluntary desistance. (People vs. Orita, G.R. No. 88724, April
3, 1990, 184 SCRA 105, 113, quoting U.S. vs. Eduave, 36 Phil. 209,
212)
Attempted or frustrated felony distinguished from

impossible crime.
(1) In attempted or frustrated felony and impossible crime, the evil
intent of the offender is not accomplished.
(2) But while in impossible crime, the evil intent of the offender
cannot be accomplished, in attempted or frustrated felony the evil
intent of the offender is possible of accomplishment.
(3) In impossible crime, the evil intent of the offender cannot be
accomplished because it is inherently impossible of
accomplishment or because the means employed by the offender
is inadequate or ineffectual; in attempted or frustrated felony,
what prevented its accomplishment is
ill
Consummated Felony
the intervention of certain cause or accident in which the offender
had no part.
Consummated felony.
A felony is consummated when all the elements necessary for its
execution and accomplishment are present.

"All the elements" necessary for its execution and accomplishment "are
present."
In consummated felony, all the elements necessary for its execution and
accomplishment must be present. Every crime has its own elements which must
all he present to constitute a culpable violation of a precept of law.
When not all the elements of a felony are proved.

When a felony has two or more elements and one of them is not proved
by the prosecution during the trial, either (1) the felony is not shown to have
been consummated, or (2) the felony is not shown to have been committed, or
(3) another felony is shown to have been committed.
Thus, in the prosecution for homicide where the death of the victim is an
element of the offense, if that element is absent, because the victim does not
die, the crime is not consummated. It is either attempted or frustrated.
In taking personal property from another, when the element of intent to
gain is lacking on the part of the person taking it, the crime of theft is not
committed.
In the prosecution for estafa (Art. 315), if the element of deceit or abuse
of confidence is not proved, there is no crime. There is only civil liability.
But if the element of damage only is not proved, the accused may be
found guilty of attempted or frustrated estafa.
In the prosecution for robbery with violence against persons (Art. 294),
if the element of intent to gain is not proved, the accused can be found guilty of
grave coercion (Art. 286), another felony.
How to Determine the Three Stages
In the prosecution for forcible abduction (Art. 342), if the element of

lewd designs is not proved, the accused may be held liable for kidnapping and
serious illegal detention (Art. 267), another felony.
Hence, all the elements of the felony for which the accused is prosecuted
must be present in order to hold him liable therefor in its consummated stage.
112
How to determine whether the crime is only attempted or
frustrated or it is consummated.
In determining whether the felony is only attempted or frustrated or it is
consummated, (1) the nature of the offense, (2) the elements constituting the
felony, as well as (3) the manner of committing the same, must be considered.
Nature of crime.
Arson (Arts. 320-326). — In arson, it is not necessary that the property
is totally destroyed by fire. The crime of arson is therefore, consummated even
if only a portion of the wall or any other part of the house is burned. The
consummation of the crime of arson does not depend upon the extent of the
damage caused. (People vs. Hernandez, 54 Phil. 122) The fact of having set fire
to some rags and jute sacks, soaked in kerosene oil, and placing them near the
wooden partition of the house, should not be qualified as consummated arson,
inasmuch
as no part of the house began to burn. It is only frustrated arson. (U.S. vs.
Valdes, 39 Phil. 240)
When a person had poured gasoline under the house of another and was
about to strike a match to set the house on fire when he was apprehended, he
was guilty of attempted arson. The acts performed by him are directly
connected with the crime of arson, the offense he intended to commit. The
pouring of the gasoline under the house and the striking of the match could
not be for any other purpose.
If there was blaze, but no part of the house is burned, the crime of arson
is frustrated. If any part of the house, no matter how small, is burned, the
crime of arson is consummated.
Elements constituting the felony.

In theft, the crime is consummated when the thief is able to take or get
hold of the thing belonging to another, even if he is not
113
able to carry it away. In estafa, the crime is consummated when the
offended party is actually damaged or prejudiced.
Theft. — A Customs inspector abstracted a leather belt from the
baggage of a Japanese and secreted it in the drawer of his desk in the
Customs House, where it was found by other Customs employees. The
Court of First Instance convicted him of frustrated theft. The Supreme
Court considered it consummated theft, because all the elements
necessary for its execution and accomplishment were present. (U.S. vs.
Adiao, 38 Phil. 754)
Actual taking with intent to gain of personal property, belonging to
another, without the latter's consent, is sufficient to constitute
consummated theft. It is not necessary that the offender carries away or
appropriates the property taken.
Estafa. — Defendant was a salesman of the Philippine
Education Company. After he had received f*7.50 for the sale of books,
which he should have given to the cashier, he put it in his pocket with
intent to misappropriate the amount. Held: This is frustrated estafa.
(U.S. vs. Dominguez, 41 Phil. 408)
The accused performed all the acts of execution. However, the
crime was not consummated as there was no damage caused in view of
the timely discovery of the felonious act. In this kind of estafa the
elements of (1) abuse of confidence, and (2) damage to the offended party
must concur.
Is there a conflict in the rulings of the Adiao case and

Dominguez case?
In the Adiao case, the theft was consummated although the belt was only
secreted in defendant's desk. In the Dominguez case, the estafa was only
frustrated even if the sales money was already in defendant's pocket.
Apparently, they should both be either consummated or frustrated. The
difference lies in the elements of the two crimes. In estafa, the offended party
must be actually prejudiced or damaged. This element is lacking in the
Dominguez case. In theft, the mere removal of the personal property belonging
to another with intent to gain is sufficient. The act of removing the personal
property constitutes the element of taking in theft. In the Adiao case, only the
element of taking is in question. And that element is considered present
because he abstracted (removed) the leather belt from the STAGES OF
EXECUTION Art. 6
114
baggage where it was kept and secreted it in the drawer of his desk. The
taking was complete.
Frustrated theft.
A truck loaded with stolen boxes of rifles was on the way out of the
check point in South Harbor surrounded by a tall fence when an MP guard
discovered the boxes on the truck. It was held that the crime committed was
frustrated theft, because of the timely discovery of the boxes on the truck
before it could pass out of the check point. (People vs. Dino, C.A., 45 O.G.
3446)
In the Supply Depot at Quezon City, the accused removed from the pile
nine pieces of hospital linen and took them to their truck where they were
found by a corporal of the MP guards when they tried to pass through the
check point. It was held that the crime committed was consummated theft.
(People vs. Espiritu, et al., CA-G.R. No. 2107-R, May 31, 1949)
Distinguished from the Dino case.

In the Espiritu case, it was held that the crime of theft was consummated
because the thieves were able to take or get hold of the hospital linen and that
the only thing that was frustrated, which does not constitute any element of
theft, is the use or benefit that the thieves expected to derive from the
commission of the offense.
In the Dino case, it was held that the crime committed is that of
frustrated theft, because the fact determinative of consummation in the crime
of theft is the ability of the offender to dispose freely of the articles stolen, even
if it were more or less momentarily. The Court of Appeals followed the
opinion of Viada in this case. (See 5 Viada,
103)
When the meaning of an element of a felony is controversial, there is
bound to arise different rulings as to the stage of execution of that felony.
Example of attempted theft.

The accused was found inside a parked jeep of Captain Parker by an
American MP. The jeep's padlock had been forced open and lying between
the front seats and the gearshift was an iron bar. Captain Parker was then
inside a theater. It was held that the accused already
115
Art. 6
STAGES OF EXECUTION
commenced to carry out his felonious intention, and that if he did not
perform all the acts of execution which should have produced the
crime of theft, it was because of the timely arrival of the MP. The overt acts of
the accused consisted in forcing open the padlock locking the gearshift to a
ring attached to the dashboard which was placed there to avoid the jeep from
being stolen. (People vs. De la Cruz, C.A., 43
O.G. 3202)
Example of attempted estafa by means of deceit.

The accused fraudulently assumed authority to demand fees for the
Bureau of Forestry, when he noticed that a timber was cut in the forest by the
complainant without permit and used it in building his house. The accused
tried to collect f*6.00 from the complainant ostensibly to save him from
paying a fine and to prepare for him a petition to obtain a permit to cut
timber. The complainant refused or was unable to give P6.00 to the accused.
(U.S. vs. Villanueva, 1 Phil. 370)
The fraudulent and false representations of the accused that he was
authorized to collect f*6.00 is the overt act. The refusal or inability of the
complainant to give f*6.00 to the accused is a cause which prevented the latter
from performing all the acts of execution.
Examples of frustrated estafa by means of deceit.

The accused offered to give complainant a job as office boy in Ft.
McKinley with a salary of P25.00, but he asked P3.80 for X-ray examination.
The representation of the accused that the amount of P3.80 was for X-ray
examination was false. Complainant handed to him P3.75 and while taking the
remaining five centavos from his pocket, a policeman placed the accused
under arrest. (People vs. Gutierrez, C.A., 40 O.G., Supp. 4, 125)
Where the accused, who made false pretenses, is apprehended
immediately after receiving the money from the complainant inside the
compound of the latter's employer, pursuant to a pre-arranged plan with the
authorities, the crime committed is frustrated, and not consummated, estafa.
(People vs. Castillo, C.A., 65 O.G. 1065)
Mere removal of personal property, not sufficient to consummate the crime of
robbery by the use of force upon things.
The culprits, after breaking the floor of the bodega through which they
entered the same, removed a sack of sugar from the pile;
116
but were caught in the act of taking it out through the opening on the floor.
Held: Frustrated robbery. (People vs. Del Rosario, C.A., 46 O.G. 4332)
In robbery by the use of force upon things (Arts. 299 and 302), since the
offender must enter the building to commit the crime, he must be able to carry
out of the building the thing taken to consummate the crime.
In robbery with violence against or intimidation of persons (Art. 294),
the crime is consummated the moment the offender gets hold of the thing
taken and I or is in a position to dispose of it freely.
Element of intent to kill, when present in inflicting physical

injuries.
If any of the physical injuries described in Articles 263, 264, 265 and 266
is inflicted with intent to kill on any of the persons mentioned in Article 246, or
with the attendance of any of the circumstances enumerated in Article 248, the
crime would be either attempted or frustrated parricide or murder as the case
may be.
Defendant with a pocket knife inflicted several wounds on the victim.
The words "until I can kill you" were uttered by the assailant. Held:
Attempted homicide, not physical injuries, because the intention to kill is
evident. (U.S. vs. Joven, 44 Phil. 796)
The accused inflicted bolo wounds on the shoulder and across the lips of
the victim and then withdrew. Held: Not frustrated homicide, but serious
physical injuries as the accused probably knew that the injuries were not such
as should produce death. Intent to kill was not present. (U.S. vs. Maghirang,
28 Phil. 655)
The facts indicate that the petitioner had no intention to kill the
offended party. Thus, petitioner started the assault on the offended party by
just giving him fist blows; the wounds inflicted on the offended party were of
slight nature; the petitioner retreated and went away when the offended party
started hitting him with a bolo, thereby indicating that if the petitioner had
intended to kill the offended party, he would have held his ground and kept on
hitting the offended party with his bolo to kill him. The element of intent to
kill not having been fully established, and considering that the injuries
suffered by the offended party were not necessarily fatal and could be healed
in less than 30 days, the offense committed by the petitioner Art. 6
is only that of less serious physical injuries. (Mondragon vs. People,

17 SCRA 476)
117
STAGES OF EXECUTION
Where the accused voluntarily left their victim after giving him a sound
thrashing, without inflicting any fatal injury, although they could have easily
killed their said victim, considering their superior number and the weapons
with which they were provided, the intent to kill on the part of the accused is
wanting and the crime committed is merely physical injuries and not
attempted murder. (People vs. Malinao, [CA] 57 O.G. 2328)
Manner of committing the crime.

1. Formal crimes — consummated in one instant, no attempt.
There are crimes, like slander and false testimony, which are
consummated in one instant, by a single act. These are formal
crimes.
As a rule, there can be no attempt at a formal crime, because
between the thought and the deed there is no chain of acts that can be
severed in any link. Thus, in slander, there is either a crime or no crime
at all, depending upon whether or not defamatory words were spoken
publicly. (Albert)
In the sale of marijuana and other prohibited drugs, the mere act of
selling or even acting as broker consummates the crime. (People vs.
Marcos, G.R. No. 83325, May 8, 1990, 185 SCRA 154, 166)
2. Crimes consummated by mere attempt or proposal or by overt act.

Flight to enemy's country (Art. 121). — In this crime the mere
attempt to flee to an enemy country is a consummated felony.
Corruption of minors (Art. 340). — A mere proposal to the minor
to satisfy the lust of another will consummate the offense.
There is no attempted crime of treason, because the overt act in
itself consummates the crime. (63 C.J., Sec. 5, p. 814)
3. Felony by omission.
There can be no attempted stage when the felony is by omission,
because in this kind of felony the offender does not execute acts. He
omits to perform an act which the law requires him to do.
But killing a child by starving him, although apparently by
omission, is in fact by commission. (Albert)
4. Crimes requiring the intervention of two persons to commit them are
consummated by mere agreement.
118
In those crimes, like betting in sport contests and corruption of
public officer (Art. 197 and Art. 212), which require the intervention of
two persons to commit them, the same are consummated by mere
agreement. The offer made by one of the parties to the other constitutes
attempted felony, if the offer is rejected. (U.S. vs. Basa, 8 Phil. 89)
In view of the rule stated, it would seem that there is no frustrated
bribery (corruption of public officer). But in the case of People vs. Diego
Quin, G.R. No. L-42653, it was held by the Supreme Court that where
the defendant fails to corrupt a public officer, because the latter
returned the money given by the defendant, the crime committed is
frustrated bribery (corruption of public officer) under Art. 212 in
relation to Art. 6.
In the case of U.S. vs. Te Tong, 26 Phil. 453, where the roll of bills
amounting to P500 was accepted by the police officer for the purpose of
using the same as evidence in the prosecution of the accused for
attempted bribery (attempted corruption of a public officer), it was held
that the accused who delivered the money was guilty of attempted
bribery.
5. Material crimes — There are three stages of execution.
Thus, homicide, rape, etc., are not consummated in one instant or
by a single act. These are the material crimes.
(a) Consummated rape. — The accused lay on top of a girl nine years
of age for over fifteen minutes. The girl testified that there was
partial penetration of the male organ in her private parts and that
she felt intense pain. Held: Entry of the labia or lips of the female
organ without rupture of the hymen or laceration of the vagina is
generally held sufficient to warrant conviction of the accused for
consummated crime of rape. (People vs. Hernandez, 49 Phil. 980,
982)
Art. 6
(b) Frustrated rape. — The accused endeavored to have sexual

intercourse with a girl three years and eleven months old. There
was doubt whether he succeeded in penetrating the vagina. Held:
There being no conclusive evidence of penetration of the genital
organ of the child, the accused is entitled to the benefit of the
doubt and can only be found guilty of frustrated rape. (People vs.
Erifia, 50 Phil. 998,
119
STAGES OF EXECUTION
1000)
However, in the case of People vs. Orita, 184 SCRA
114, 115, the Supreme Court held that "x x x for the consummation
of rape, perfect penetration is not essential. Any penetration of the
female organ by the male organ is sufficient. Entry of the labia or
lips of the female organ, without rupture of the hymen or laceration
of the vagina, is sufficient to warrant conviction, x x x Taking into
account the nature, elements and manner of execution of the crime
of rape and jurisprudence on the matter, it is hardly conceivable
how the frustrated stage in rape can be committed." The Supreme
Court further held that the Erifia case appears to be a "stray"
decision inasmuch as it has not been reiterated in the Court's
subsequent decisions.
(c) Attempted rape. — The accused placed himself on top of a woman,

and raising her skirt in an effort to get his knees between her legs
while his hands held her arms firmly, endeavoring to have sexual
intercourse with her, but not succeeding because the offended
party was able to extricate herself and to run away. Held:
Attempted rape. (People vs. Brocal, [CA] 36 O.G. 856)
(d) Consummated homicide. — Accused-appellant shot the victim in
the left forearm. While he and the victim were grappling for the
gun, his co-accused who has remained at large, stabbed the victim
in the chest. The victim died and it was established that the cause
of death was hemorrhage, secondary to stab wound. Held:
Accused-appellant was found guilty of homicide there being no
qualifying circumstance to make the killing murder. The fact that
he did not inflict the mortal wound is of no moment, since the
existence of conspiracy was satisfactorily shown by
the evidence. (People vs. Sazon, G.R. No. 89684, Sept.
18, 1990, 189 SCRA 700, 703, 711, 713)
(e) Frustrated murder. — The accused stabbed his two victims as they
were about to close their store in the evening. One of the victims
died while the other recovered. Held: The assault upon the
surviving victim constituted frustrated murder, her relatively
quick recovery being the result of prompt medical attention which
prevented the infection in the wound from reaching fatal
proportions which would otherwise have ensued. The attack was
qualified by treachery (alevosia). (People vs. Mision, G.R. No.
63480, Feb. 26, 1991, 194 SCRA 432, 445-446)
120
(f) Attempted homicide. — The accused intended to kill his victim but
he was not able to perform all the acts of execution necessary to
consummate the killing. The wounds inflicted did not affect vital
organs. They were not mortal. He first warned his victim before
shooting him.
Held: Attempted homicide. (People vs. Ramolete, No. L-
28108, March 27, 1974, 56 SCRA 66, 82-83)
There is no attempted or frustrated impossible crime.

In impossible crime, the person intending to commit an offense has
already performed the acts for the execution of the same, but nevertheless the
crime is not produced by reason of the fact that the act intended is by its
nature one of impossible accomplishment or because the means employed by
such person are essentially inadequate or ineffectual to produce the result
desired by him. (See
Art. 59, Revised Penal Code)
Therefore, since the offender in impossible crime has already performed
the acts for the execution of the same, there could be no attempted impossible
crime. In attempted felony, the offender has not performed all the acts of
execution which would produce the felony as a consequence.
There is no frustrated impossible crime, because the acts performed by
the offender are considered as constituting a consummated offense.
121
Art. 7 LIGHT FELONIES WHEN PUNISHABLE
Art. 7. When light felonies are punishable. — Light felonies are

punishable only w h e n they have been consummated, with the exception of
those committed against persons or property.
What are light felonies?

Light felonies are those infractions of law for the commission of which
the penalty of arresto menor or a fine not exceeding 200 pesos, or both, is
provided. (Art. 9, par. 3)
The light felonies punished by the Revised Penal Code:
1. Slight physical injuries. (Art. 266)
2. Theft. (Art. 309, pars. 7 and 8)
3. Alteration of boundary marks. (Art. 313)
4. Malicious mischief. (Art. 328, par. 3; Art. 329, par. 3)
5. Intriguing against honor. (Art. 364)

The penalty for the above-mentioned crimes is arresto menor
(imprisonment from one day to thirty days), or a fine not exceeding P200.
1. "With the exception of those committed against persons or

property."
General Rule:
Light felonies are punishable only when they have been consummated.
Exception:
Light felonies committed against persons or property, are
punishable even {{attempted or frustrated.
Reason for the general rule.

Light felonies produce such light, such insignificant moral and material
injuries that public conscience is satisfied with providing a Art. 8
122
CONSPIRACY AND PROPOSAL TO COMMIT
FELONY
light penalty for their consummation. If they are not consummated, the wrong
done is so slight that there is no need of providing a penalty at all. (Albert)
Reason for the exception:

The commission of felonies against persons or property presupposes in
the offender moral depravity. For that reason, even attempted or frustrated light
felonies against persons or property are punishable.
Examples of light felonies against person:

Art. 266 — Slight physical injuries and maltreatment.
Examples of light felonies against property:

1. Art. 309, No. 7 — Theft by hunting or fishing or gathering fruits,
cereals or other forest or farm products upon an inclosed estate or
field where trespass is forbidden and the value of the thing stolen
does not exceed f*5.00.
2. Art. 309, No. 8 — Theft, where the value of the stolen property
does not exceed f*5.00 and the offender was prompted by hunger,
poverty, or the difficulty of earning a livelihood.
3. Art. 313 — Alteration of boundary marks.

4. Art. 328, No. 3; Art. 329, No. 3 — Malicious mischief where the
damage is not more than P200.00 or if it cannot be estimated.
Art. 8. Conspiracy and proposal to commit felony. — Conspiracy and

proposal to commit felony are punishable only in the cases in which the law
specially provides a penalty therefor.
A conspiracy exists w h e n two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
There is proposal w h e n the person who has decided to commit a
felony proposes its execution to some other person or persons.
1. "Conspiracy and proposal to commit felony."
Conspiracy and proposal to commit felony are two different acts
or felonies: (1) conspiracy to commit a felony, and (2) proposal to
commit a felony.
123
Art. 8 CONSPIRACY AND PROPOSAL TO
COMMIT FELONY
2. "Only in the cases in which the law specially provides a penalty
therefor."
Unless there is a specific provision in the Revised Penal Code
providing a penalty for conspiracy or proposal to commit a felony, mere
conspiracy or proposal is not a felony.
Conspiracy is not a crime except when the law specifically

provides a penalty therefor.
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it. (Art. 8)
Generally, conspiracy is not a crime except when the law specifically provides
a penalty therefor as in treason (Art. 115), rebellion (Art. 136) and sedition
(Art. 141). The crime of conspiracy known to the common law is not an
indictable offense in the Philippines. (U.S. vs. Lim Buanco, 14 Phil. 472; U.S.
vs. Remigio, 37 Phil. 599, 614; People vs. Asaad, 55 Phil. 697) An agreement to
commit a crime is a reprehensible act from the viewpoint of morality, but as
long as the conspirators do not perform overt acts in furtherance of their
malevolent design, the sovereignty of the State is not outraged and the
tranquility of the public remains undisturbed. However, when in resolute
execution of a common scheme, a felony is committed by two or more
malefactors, the existence of a conspiracy assumes pivotal importance in the
determination of the liability of the perpetrators. (People vs. Peralta, 25 SCRA
759)
General Rule:
Conspiracy and proposal to commit felony are not punishable.
Exception:
They are punishable only in the cases in which the law specially
provides a penalty therefor.
Art 8
Reason for the rule.

Conspiracy and proposal to commit a crime are only preparatory acts,
and the law regards them as innocent or at least permissible except in rare and
exceptional cases.
The Revised Penal Code specially provides a penalty for

mere conspiracy in Arts. 115,136, and 141.
124
CONSPIRACY AND PROPOSAL TO COMMIT
FELONY
Art. 115. Conspiracy xxxto commit treason — Penalty. — The conspiracy
x x x to commit the crime of treason shall be punished x
x x by prision mayor and a fine not exceeding 10,000 pesos x x x.
Art. 136. Conspiracy x x x to commit coup d'etat, rebellion or
insurrection. — The conspiracy x x x to commit coup d'etat shall be punished
by prision mayor in its minimum period and a fine which shall not exceed
8,000 pesos.
The conspiracy x x x to commit rebellion or insurrection shall be
punished x x x by prision correccional in its maximum period and a fine which
shall not exceed 5,000 pesos xxx. (As amended by Rep. Act No. 6968)
Art. 141. Conspiracy to commit sedition. — Persons conspiring to commit
the crime of sedition shall be punished by prision mayor in
its medium period and a fine not exceeding 2,000 pesos. (As amended by P.D.
No. 942)
Treason, coup d'etat rebellion or sedition should not be

actually committed.
The conspirators should not actually commit treason, coup d'etat
rebellion or sedition. It is sufficient that two or more persons agree and decide
to commit treason, rebellion or sedition.
If they commit, say, treason, they will be held liable for treason, and the
conspiracy which they had before committing treason is only a manner of
incurring criminal liability. It is not a separate offense.
Conspiracy as a felony, distinguished from conspiracy as

a manner of incurring criminal liability.
When the conspiracy relates to a crime actually committed, it is not a
felony but only a manner of incurring criminal liability, that is, when there
is conspiracy, the act of one is the act of all.
Even if the conspiracy relates to any of the crimes of treason, rebellion
and sedition, but any of them is actually committed, the conspiracy is not a
separate offense; it is only a manner of incurring criminal liability, that is, all
the conspirators who carried out their plan and personally took part in its
execution are equally liable. The offenders are liable for treason, rebellion, or
sedition, as the case may be, and the conspiracy is absorbed.
When conspiracy is only a manner of incurring criminal liability, it is
not punishable as a separate offense.
125
COMMIT FELONY
Illustrations of conspiracy as felony and as a manner of
incurring criminal liability.
1. A and B agreed and decided to rise publicly and take arms against the
government with the help of their followers. Even if
they did not carry out their plan to overthrow the government, A and B
are liable for conspiracy to commit rebellion under Art. 136 of the
Revised Penal Code.
But if A and B and their followers did rise publicly and take arms
against the government to overthrow it, thereby committing rebellion,
their conspiracy is not a felony. They are liable for rebellion and their
conspiracy is only a manner of incurring criminal liability for rebellion.
2. A, B, and C, after having conceived a criminal plan, got together, agreed
and decided to kill D. If A, B and C failed to carry out the plan for some
reason or another, they are not liable for having conspired against D,
because the crime they conspired to commit, which is murder, is not
treason, rebellion or sedition.
But if they carried out the plan and personally took part in its execution
which resulted in the killing of D, they are all liable for murder, even if A
merely acted as guard outside the house where D was killed and B merely held
the arms of D when C stabbed him to death. Their conspiracy is only a
manner of incurring criminal liability for murder. It is not an offense, not only
because a crime was committed after the conspiracy, but also because
conspiracy to commit murder is not punished in the Revised Penal Code.
126
CONSPIRACY AND PROPOSAL TO Art. 8
COMMIT FELONY
Indications of conspiracy.
When the defendants by their acts aimed at the same object, one
performing one part and the other performing another part so as to complete
it, with a view to the attainment of the same object, and their acts, though
apparently independent, were in fact concerted and cooperative, indicating
closeness of personal association, concerted action and concurrence of
sentiments, the court will be justified in concluding that said defendants were
engaged in a conspiracy. (People vs. Geronimo, No. L-35700, Oct. 15,1973, 53
SCRA 246, 254)
Thus, an accused has been held as a co-conspirator as the circumstances
of his participation indubitably showed unity of purpose and unity in the
execution of the unlawful acts, gleaned from that fact that he knew of the plot
to assassinate the victim as he too had been ordered to scout for a man who
could do the job; he also knew exactly the place where the killing was to take
place and also the date and approximate time of the assault. (People vs.
Cantuba, G.R. No. 79811, March 19, 1990, 183 SCRA 289, 298)
For a collective responsibility among the accused to be established, it is
sufficient that at the time of the aggression, all of them acted in concert, each
doing his part to fulfill their common design to kill their victim, and although
only one of them may have actually stabbed the victim, the act of that one is
deemed to be the act of all. (People vs. Hernandez, G.R. No. 90641, Feb.
27,1990,182 SCRA 794,
798)
The acts of the defendants must show a common design.

It is fundamental for conspiracy to exist that there must be unity of
purpose and unity in the execution of the unlawful objective. Here, appellants
did not act with a unity of purpose. Even assuming that appellants have joined
together in the killing, such circumstances alone do not satisfy the
requirement of a conspiracy because the rule is that neither joint nor
simultaneous action is per se sufficient proof of conspiracy. It must be shown
to exist as clearly and convincingly as the commission of the offense itself.
Obedience to a command does not necessarily show concert of design, for at
any rate it is the acts of the conspirators that show their common design.
Although the defendants are relatives and had acted with some degree
of simultaneity in attacking their victim, nevertheless, this fact alone does not
prove conspiracy. (People vs. Dorico, No. L-31568, Nov. 29, 1973, 54 SCRA
172, 186-188)
127
COMMIT FELONY
People vs. Pugay

(167 SCRA 439)
Facts: The deceased Miranda, a 25-year-old retardate, and the

accused Pugay were friends. On the evening of May 19, 1982, while a
town fiesta was being held in the public plaza, the group of accused
Pugay and Samson saw the deceased walking nearby, and started
making fun of him. Not content with what they were doing, accused
Pugay suddenly took a can of gasoline from under the engine of a ferris
wheel and poured its contents on the body of Miranda. Then, the
accused Samson set Miranda on fire making a human torch out of him.
Held: Where there is nothing in the records showing that there
was previous conspiracy or unity of criminal purpose between the two
accused immediately before the commission of the crime, where there
was no animosity between the deceased and the accused and it is clear
that the accused merely wanted to make fun of the deceased, the
respective criminal responsibility of the accused arising from different
acts directed against the deceased is individual and not collective, and
each of them is liable only for the act committed by him.
Period of time to afford opportunity for meditation and reflection, not required
in conspiracy.
Unlike in evident premeditation, where a sufficient period of time must
elapse to afford full opportunity for meditation and reflection and for the
perpetrator to deliberate on the consequences of his intended deed (U.S. vs.
Gil, 13 Phil. 330), conspiracy arises on the very instant the plotters agree,
expressly or impliedly, to commit the felony and forthwith decide to pursue it.
Once this assent is established, each and everyone of the conspirators is made
criminally liable for the crime, committed by anyone of them. (People vs.
Monroy, et al., 104 Phil. 759)
Art. 186 of the Revised Penal Code punishing conspiracy.

Art. 186. Monopolies and combinations in restraint of trade.
— The penalty of prision correccional in its minimum period or a fine ranging
from two hundred to six thousand pesos, or both, shall be imposed upon:
1. Any person who shall enter into any contract or agreement or shall
take part in any conspiracy or combination in the form of a trust
or otherwise, in restraint of trade or commerce or to prevent by
artificial means free competition in the market.
128
COMMIT FELONY
2. xxx
3. Any person who, being a manufacturer, producer, x x x , shall

combine, conspire or agree x x x with any person x x x for the
purpose of making transactions prejudicial to lawful commerce,
or of increasing the market price x x x of any such merchandise x
xx.
Requisites of conspiracy:
1. That two or more persons came to an agreement;
2. That the agreement concerned the commission of a felony; and
3. That the execution of the felony be decided upon.

1st element — agreement presupposes meeting of the minds of two or
more persons.
Thus, the fact that a document is discovered purporting to be a
commission appointing the defendant an officer of armed forces against the
Government does not prove conspiracy, because it was not shown that
defendant received or accepted that commission. (U.S. vs. Villarino, 5 Phil.
697)
2nd element — the agreement must refer to the commission of a crime. It
must be an agreement to act, to effect, to bring about
what has already been conceived and determined.
Thus, the mere fact that the defendant met and aired some complaints,
showing discontent with the Government over some real or fancied evils, is not
sufficient. (U.S. vs. Figueras, 2 Phil. 491)
3rd element — the conspirators have made up their minds to commit
the crime. There must be a determination to commit
the crime of treason, rebellion or sedition.
Direct proof is not essential to establish conspiracy.

Article 8 of the Revised Penal Code provides that there is conspiracy
when two or more persons agree to commit a crime and decide to commit it.
Direct proof is not essential to establish conspiracy, and may be inferred from
the collective acts of the accused before, during and after the commission of
the crime. Conspiracy can be presumed from and proven by acts of the
accused themselves when the said acts point to a joint purpose and design,
129
COMMIT FELONY
concerted action and community of interests. It is not necessary to show that

all the
conspirators actually hit and killed the victim. Conspiracy renders all the
conspirators as co-principals regardless of the extent and character of their
participation because in contemplation of law, the act of one conspirator is the
act of all. (People vs. Buntag, G.R. No. 123070, April 14, 2004)
Quantum of proof required to establish conspiracy.

Similar to the physical act constituting the crime itself, the elements of
conspiracy must be proven beyond reasonable doubt. Settled is the rule that to
estabish conspiracy, evidence of actual cooperation rather than mere
cognizance or approval of an illegal act is required.
A conspiracy must be established by positive and conclusive evidence. It
must be shown to exist as clearly and convincingly as the commission of the
crime itself. Mere presence of a person at the scene of the crime does not make
him a conspirator for conspiracy transcends companionship.
The evidence shows that George Comadre and Danilo Lozano did not
have any participation in the commission of the crime and must therefore be
set free. Their mere presence at the scene of the crime as well as their close
relationship with Antonio are insufficient to establish conspiracy considering
that they performed no positive act in furtherance of the crime.
Neither was it proven that their act of running away with Antonio was an
act of giving moral assistance to his criminal act. The ratiocination of the trial
court that "their presence provided encouragement and sense of security to
Antonio," is devoid of any factual basis. Such finding is not supported by the
evidence on record and cannot therefore be a valid basis of a finding of
conspiracy. (People vs. Comadre, G.R. No. 153559, June 8, 2004)
The Revised Penal Code specially provides a penalty for

mere proposal in Arts. 115 and 136.
Art. 115. x x x proposal to commit treason — Penalty. — The x x x
proposal to commit the crime of treason shall be punished x x x by prision
correccional and a fine not exceeding 5,000 pesos.
Art. 136. x x x proposal to commit coup d'etat rebellion or insurrection. —
The x x x proposal to commit coup d'etat shall be punished by prision mayor in
its minimum period and a fine which shall not exceed 8,000 pesos.
130
COMMIT FELONY
The x x x proposal to commit rebellion or insurrection shall be punished

x x x by prision correccional in its medium period and a fine not exceeding
2,000 pesos. (As amended by Rep. Act. No. 6968) Treason or rebellion
should not be actually committed.
In proposal to commit treason or rebellion, the crime of treason or
rebellion should not be actually committed by reason of the proposal.
If the crime of treason or rebellion was actually committed after and
because of the proposal, then the proponent would be liable for treason or
rebellion as a principal by inducement (Art. 17, par. 2), and in such case the
proposal is not a felony.
Requisites of proposal:
1. That a person has decided to commit a felony; and
2. That he proposes its execution to some other person or persons.
There is no criminal proposal when —

1. The person who proposes is not determined to commit the felony.
Example: A desires that the present government be overthrown.
But A is afraid to do it himself with others. A then suggests the
overthrowing of the government to some desperate people who will do
it at the slightest provocation. In this case, A is not liable for proposal to
commit rebellion, because A has not decided to commit it.
2. There is no decided, concrete and formal proposal.
In the above example, note that there was merely a suggestion—
not a decided, concrete and formal proposal.
3. It is not the execution of a felony that is proposed.
Example: A conceived the idea of overthrowing the present
government. A called several of his trusted followers and instructed
them to go around the country and secretly to organize groups and to
convince them of the necessity of having a new government. Note that
what A proposed in this case is
not the execution of the crime of rebellion, but the performance of
preparatory acts for the commission of rebellion. Therefore, there is no
criminal proposal.
Problem:
131
COMMIT FELONY
If the proponents of rebellion desist before any rebellious act is actually

performed by the would-be material executors, inform the
authorities and aid in the arrest of their fellow plotters, should the proponents
be exempt?
According to Albert, the proponents should be exempt from the
penalties provided for criminal proposals and conspiracies, for the law would
rather prevent than punish crimes and encouragement should be given to
those who hearken to the voice of conscience.
But once a proposal to commit rebellion is made by the proponent to
another person, the crime of proposal to commit rebellion is consummated and
the desistance of the proponent cannot legally exempt him from criminal
liability.
It is not necessary that the person to whom the proposal

is made agrees to commit treason or rebellion.
Note that what constitutes the felony of proposal to commit treason or
rebellion is the making of proposal. The law does not require that the proposal
be accepted by the person to whom the proposal is made. If it is accepted, it
may be conspiracy to commit treason or rebellion, because there would be an
agreement and a decision to commit it.
Proposal as an overt act of corruption of public officer.

One who offers money to a public officer to induce him not to perform
his duties, but the offer is rejected by the public officer, is
132
CLASSIFICATION OF FELONIES Art. 9
ACCORDING TO THEIR GRAVITY
liable for attempted bribery. (U.S. vs. Gloria, 4 Phil. 341) Note that while it is
true that the act performed by the offender is in the nature of a proposal, and
is not punishable because it does not involve treason or rebellion, nevertheless,
the proposal in this case is an overt act of the crime of corruption of public
officer. (See Art. 212)
The crimes in which conspiracy and proposal are

punishable are against the security of the State or
economic security.
Treason is against the external security of the State. Coup d'etat,
rebellion and sedition are against internal security. Monopolies and
combinations in restraint of trade are against economic security.
Reason why conspiracy and proposal to commit a crime is

punishable in crimes against external and internal security
of the State.
In ordinary crimes, the State survives the victim, and the culprit cannot
find in the success of his work any impunity. Whereas, in crimes against the
external and internal security of the State, if the culprit succeeds in his
criminal enterprise, he would obtain the power and therefore impunity for the
crime committed. (Albert)
Art. 9. Grave felonies, less grave felonies, and light felonies.

— Grave felonies are those to w h i c h the law attaches the capital
punishment or penalties w h i c h in any of their periods are afflictive, in
accordance with Article 25 of this Code.
Less grave felonies are those which the law punishes with penalties
which in their maximum period are correctional, in accordance with the
above-mentioned article.
Light felonies are those infractions of law for the commission of which
the penalty of arresto menor or a fine not exceeding 200 pesos, or both, is
provided.
Classification of felonies according to their gravity.

Art. 9 classifies felonies according to their gravity. The gravity of the
felonies is determined by the penalties attached to them by law.
133
Art. 9 CLASSIFICATION OF FELONIES

1. "To which the law attaches the capital punishment."
Capital punishment is death penalty.
2. "Or penalties which in any of their periods are afflictive."

Although the word "any" is used in the phrase, when the
penalty prescribed for the offense is composed of two or more
distinct penalties, the higher or highest of the penalties must be an
afflictive penalty.
Example: A felony punishable by prision correccional to

prision mayor is a grave felony, because the higher of the two
penalties prescribed, which is prision mayor (Art. 71), is an
afflictive penalty.
If the penalty prescribed is composed of two or more periods

corresponding to different divisible penalties, the higher or
maximum period must be that of an afflictive penalty.
Example: A felony punishable by prision correccional in its

maximum period to prision mayor in its minimum period is a grave
felony, because the higher period, which is the minimum of prision
mayor, is a period of an afflictive penalty.
If the penalty is composed of two periods of an afflictive

penalty or of two periods corresponding to different afflictive
penalties, the offense for which it is prescribed is a grave felony.
Example: A felony punishable by the medium and maximum

periods of prision mayor or by prision mayor in its maximum period
to reclusion temporal in its minimum period is a grave felony,
because both prision mayor and reclusion temporal are afflictive
penalties.
The afflictive penalties in accordance with Art. 25 of this
Code are:
Reclusion perpetua,
Reclusion temporal,
Perpetual or temporary absolute disqualification,
134
CLASSIFICATION OF FELONIES Art. 9
Perpetual or temporary special disqualification, Prision mayor.

"Penalties which in their maximum period are correctional."
When the penalty prescribed for the offense is composed of two or more
distinct penalties, the higher or highest of the penalties must be a correctional
penalty.
Example: A felony punishable by arresto menor to destierro is a less grave
felony, because the higher of the two penalties prescribed, which is destierro, is
a correctional penalty. Arresto menor is a light penalty.
If the penalty prescribed is composed of two or more periods

corresponding to different divisible penalties, the higher or maximum period
must be that of correctional penalty.
Example: A felony punishable by arresto menor in its maximum period to
destierro in its minimum period is a less grave felony, because the higher is a
period of a correctional penalty.
If the penalty is composed of two periods of a correctional penalty or of

two periods corresponding to different correctional penalties, like destierro
and arresto mayor, the offense for which it is prescribed is a less grave felony.
The following are correctional penalties:
Prision correccional,
Arresto mayor,
Suspension,
Destierro.
"The penalty of arresto menor or a fine not exceeding 200 pesos, or both, is
provided."
When the Code provides a fine of exactly P200.00 for the commission of
a felony, it is a light felony. If the amount of the fine provided by the Code is
more than P200.00, then it is a less grave felony, because according to Art. 26,
135
Art. 10 APPLICATION OF CODE TO CRIMES
PUNISHABLE BY SPECIAL LAWS
a fine not exceeding P6,000.00 is a correctional penalty. If the

amount of the fine provided by the Code is more than P6,000.00, it
is a grave felony, because according to Art. 26, a fine exceeding
P6,000.00 is an afflictive penalty.
Although Art. 26 provides that a fine not less than
P200.00 is a correctional penalty, Art. 9 which defines light
felonies should prevail, because the latter classifies felonies
according to their gravity, while the former classifies the fine
according to the amount thereof.
Gambling punished with arresto menor or a fine not
exceeding P200.00 is a light felony. (People vs. Canson,
Jr.,et al., 101 Phil. 537)
A felony punishable by a fine not exceeding P200.00 and
censure (Art. 365, paragraph 4) is a light felony, because public
censure, like arresto menor, is a light penalty.
Art. 10. Offenses not subject to the provisions of this Code. — Offenses
which are or in the future m a y be punishable under special laws are not
subject to the provisions of this Code. This Code shall be supplementary to
such laws, unless the latter should specially provide the contrary.
Are offenses punishable under special laws subject to the

provisions of the Revised Penal Code?
Article 10 is composed of two clauses. In the first, it is provided that
offenses under special laws are not subject to the provisions of the Code. The
second makes the Code supplementary to such laws.
The two clauses of Art. 10, reconciled.

The first clause should be understood to mean only that the Penal Code
is not intended to supersede special penal laws. The latter are controlling with
regard to offenses therein specially punished. Said clause only restates the
elemental rule of statutory construction that special legal provisions prevail
over general ones.
136
APPLICATION OF CODE TO CRIMES Art. 10
The second clause contains the soul of the article. The main idea and
purpose of the article is embodied in the provision that the "Code shall be
supplementary" to special laws, unless the latter should specially provide the
contrary. (Dissent of Justice Perfecto, People vs. Gonzales, 82 Phil. 307)
1. "Special laws."
A "special law" is defined in U.S. vs. Serapio, 23 Phil. 584, as
a penal law which punishes acts not denned and penalized by the
Penal Code.
Special law is a statute enacted by the Legislative branch,
penal in character, which is not an amendment to the Revised
Penal Code. Special laws usually follow the form of American
penal law. The penal clause, for example, provides a penalty of
from five to ten years or a fine not exceeding P5,000.00, or both, in
the discretion of the court.
The provisions of the Revised Penal Code on penalties

cannot be applied to offenses punishable under special
laws.
Art. 6 relative to attempted and frustrated stages of execution,
Arts. 18 and 19 regarding accomplices and accessories, and Arts. 50 to 57
which provide that the penalty for the principal in an attempted felony is two
degrees and in a frustrated felony one degree lower than the penalty for the
consummated felony, that the penalty for the accomplice is one degree lower
and for the accessory two degrees lower than that for the consummated
felony, Arts. 13 and 14 which provide for mitigating and aggravating
circumstances, respectively, and Art. 64 which provides for the rules for the
application of penalties with three periods, cannot be applied to offenses
punishable under special laws. The reasons are that the special laws do not
provide for a scale of penalties, as that in Art. 71 of the Code, where a given
penalty could be lowered by one or two degrees, and that the penalty provided
by the special law does not contain three periods.
The term "imprisonment" and not "prision correccional" should be
used in reference to the penalty for the crime of illegal possession of firearms
and other crimes punished by special laws, because the term "prision
correccional," "prision mayor," or "arresto mayor" is peculiar to penalties for
crimes punished by the Revised Penal Code.
137
(See People vs. Respecia, 107 Phil. 995)
Offenses under special laws, not subject to the provisions

of this Code relating to attempted and frustrated crimes.
By virtue of the provision of the first part of this article, it was held that
the attempted or the frustrated stage of the execution of an offense penalized
by a special law is not punishable, unless the special law provides a penalty
therefor. (U.S. vs. Lopez Basa, 8 Phil.
89)
The ruling in the case of U.S. vs. Basa, supra, is still good,
notwithstanding the case of Navarra vs. People, 96 Phil. 851, where it is stated
that the prohibition against the interest in municipal contracts includes all the
steps taken to consummate the contract, that is, frustrated and attempted
stages are included.
In the Navarra case, the exchange of the property of the husband of a
woman councilor and that of the municipality was approved by the municipal
council. The provisions of the Administrative Code charged to have been
violated by the councilor do not require that the contract be approved by the
provincial governor. In the Basa case, the written proposal of Councilor Basa,
offering to furnish street lamps to the municipality, at the price named
therein, was not accepted by the municipal council, it being a violation of the
law, prohibiting public officers from becoming interested in any transaction in
which it is their official duty to intervene.
In the Navarra case, the transaction in which the councilor became
interested having been approved by the municipal council, the offense was
consummated. In the Basa case, the proposal, not having been accepted by the
municipal council, the offense was only in the attempted stage.
The special law has to fix penalties for attempted and

frustrated crime.
The penalty for the consummated crime cannot be imposed when the
stage of the acts of execution is either attempted or frustrated, because the
penalty for the attempted and frustrated crime is two degrees or one degree
lower, respectively. The special law does not provide for a penalty one or two
degrees lower than that provided for the consummated stage. The special law
has to fix a penalty for the attempt and a penalty for the frustration of the
crime defined by it, in order that the crime may be punished in case its
commission reached only the attempted or frustrated stage of execution.
138
When a special law covers the mere attempt to commit the

crime defined by it, the attempted stage is punishable by
the same penalty provided by that law.
When the accused was about to board a plane of the Pan
American World Airways, four pieces of gold bullion were found tied to his
body. He was charged with a violation of Republic Act No. 265.
Held: Section 4 of Circular No. 21, issued in accordance with the
provisions of Republic Act No. 265, provides that "any person desiring to
export gold in any form x x x must obtain a license from the Central Bank x x
x." This section explicitly applies to "any person desiring to export gold" and
hence, it contemplates the situation existing prior to the consummation of the
exportation. Indeed, its purpose would be defeated if the penal sanction were
deferred until after the article in question had left the Philippines, for
jurisdiction over it and over the guilty party would be lost thereby. (People vs.
Jolliffe, 105 Phil.
677)
Art. 10, R.P.C. is not applicable to punish an accomplice

under the special law.
The offense involved is punished by Com. Act No. 466, Sec. 174.
The penalty imposed is clearly intended only for the "person who is found in
possession" of the prohibited article. No punishment for a mere accomplice is
provided. Although by Article 10 of the Revised Penal Code, its provisions
may be applied to offenses punished by special laws in a supplementary
manner, the pertinent provisions thereof on accomplices simply cannot be
given effect in the case at bar. To be able to do so, the rules on graduation of
penalties must be resorted to. Thus, Article 52 thereof prescribes for the
accomplice in a consummated offense a penalty one degree lower than that
prescribed for the principal therein. But, the penalty provided in Section 174
of the National Internal Revenue Code here involved, is a single penalty
standing by itself without any provision therein as to degrees of penalties
imposable. No room for the application of the rule of graduation of penalties
therefore exists. It would be a legal impossibility to determine what penalty is
to be imposed upon a mere accomplice. The combined provisions of both the
Revised Penal Code and the National Internal Revenue Code do not provide
any such penalty or at least lay down the basis or the manner of its
determination. The rule is and has always been nullum crimen nulla poena
sine lege. Hence, even if appellant is conceded to have performed acts which
would make of him an accomplice, it would nevertheless be impossible to
139
impose any penalty upon him because of the demonstrated inapplicability of

the principles of the Revised Penal Code on accomplices to the case at bar.
(Dissenting opinion,
People vs. Padaong, 10 C.A. Rep. 979)
Plea of guilty is not mitigating in illegal possession of

firearms, punished by special law.
The plea of guilty as mitigating circumstance under the Revised
Penal Code (Art. 13, par. 7) is not available to offenses punishable under
special laws. (People vs. Noble, 77 Phil. 1086)
Offenses which are punishable under the special laws are not subject to
the provisions of Art. 64 of the Revised Penal Code, and it has been held that
the provisions of the Revised Penal Code, relative to the application of the
circumstances modifying the criminal liability of the accused are not
applicable to special laws. (People vs. Respecia, 107 Phil. 995)
Art. 64 of the Revised Penal Code prescribing the rules for the
graduation of penalties containing three periods when mitigating and/or
aggravating circumstances attended the commission of the crime, was held
inapplicable to offenses penalized by special laws, because the penalty
prescribed by special law is usually indeterminate and does not contain three
periods. For this reason, the mitigating circumstance of voluntary plea of
guilty is not considered to mitigate the liability of one accused of illegal
possession of firearms. (People vs. Ramos, 44 O.G. 3288; People vs. Gonzales,
82 Phil. 307)
This Code considered supplementary to special laws.

2. "Supplementary"
The word "supplementary" means supplying what is
lacking; additional.
Some provisions of the Penal Code (especially with the addition of the
second sentence of Art. 10), are perfectly applicable to special laws. In fact, the
Supreme Court has extended some provisions of the Penal Code to special
penal laws, such as, the provisions of Article
22 with reference to the retroactive effect of penal laws if they favor the
accused (People vs. Parel, 44 Phil. 437); those of Article 17 with reference to
participation of principals in the commission of the crime (U.S. vs. Ponte, 20
Phil. 379); those of Article 39 with reference to subsidiary imprisonment in
140
case of insolvency to pay the fine (People vs. Abedes, 268 SCRA 619); and
those of Article 45 with reference to the confiscation of the instruments used in
the commission of the crime. (U.S. vs. Bruhez, 28 Phil. 305)
Indemnity and subsidiary imprisonment in the Revised

Penal Code applied to violation of Motor Vehicle Law.
People vs. Moreno
(60 Phil. 712)
Facts: The accused drove a car in a reckless manner, and in going
around a curve leading to a concrete bridge, he violently struck the
railing of the bridge and crushed the left side of the car. The person who
was seated on the left side of the car received injuries from which he
died the same day. The accused was convicted of homicide thru reckless
imprudence and violation of the Motor Vehicle Law (Act No. 3992).
That special law has no provision regarding indemnity to heirs of the
deceased and subsidiary imprisonment in case of insolvency. In Articles
39 and 100 of the Revised Penal Code, indemnity to heirs and subsidiary
imprisonment are, respectively, provided.
Held: Articles 39 and 100 of the Revised Penal Code are
supplementary to the Motor Vehicle Law.
Art. 39 of the Code applied to Rep. Act No. 145.

The appellant who was found guilty of a violation of Rep. Act No.
145, penalizing unlawful solicitation of, or contract for, fees relative to claim
for benefits under statutes of the U.S. being administered by the U.S.
Veterans Administration, was sentenced to suffer subsidiary imprisonment
(Art. 39) should he fail to pay to the offended party the indemnity awarded to
the latter. (People vs. Lardizabal, CA-G.R.
Nos. 11540-R to 11543, Aug. 22, 1955)
Art. 39 of the Code applied to Act No. 4003.
Appellant's contention that the trial court committed error in ordering
him to serve subsidiary imprisonment in case of insolvency in the payment of
fine for the reason that Act No. 4003, which prohibits fishing with the use of
explosives, fails to provide for such subsidiary imprisonment and that being a
special law, it is not subject to the provisions of the Revised Penal Code, is
untenable. The second paragraph of Article 10 of the said Code provides that
"this Code shall be supplementary to such laws, unless the latter should
141
specially provide the contrary." Articles 100 (civil liability) and 39 (subsidiary
penalty) are applicable to offenses under special laws (People vs. Dizon
[unrep.], 97 Phil. 1007). (People vs. Cubelo, 106 Phil. 496)
No accessory penalty, unless the special law provides

therefor.
In the case of People vs. Santos, 44 O.G. 1289, the Court of Appeals
refused to impose accessory penalty upon the accused found guilty of a
violation of Act 3992, because that law does not provide for any.
Article 12, paragraph 3, of the Revised Penal Code, applied

to minor over nine but less than fifteen years old who
violated a special law.
People vs. Navarro

(C.A., 51 O.G. 4062)
Facts: A girl, 13 years, 11 months, and 3 days old, was prosecuted

for selling cocoa P0.11 more than the selling price fixed by the
government. The prosecution failed to establish that she acted with
discernment.
Held: The state has the burden of proving that the minor acted
with discernment, otherwise, such minor shall be adjudged to be
criminally irresponsible solely by reason of her age showing lack of
intelligence. Article 12, paragraph 3, of the Revised Penal Code applied.
In the above-mentioned case, the accused was prosecuted under a

special law. Intent is immaterial in crimes mala prohibita. But even in crimes
mala prohibita, the prohibited act must be voluntarily committed. The
offender must act with intelligence. In said case, the accused acted without
intelligence.
3. "Unless the latter should specially provide the contrary."

The fact that Commonwealth Act No. 465 punishes the falsification of
residence certificates in the cases mentioned therein does not prevent the
application of the general provisions of the Revised Penal Code on other acts
of falsification not covered by the special law, since under Art. 10 of the Revised
Penal Code it has supplementary application to all special laws, unless the
latter should
142
specially provide the contrary, and Commonwealth Act No. 465 makes no
provision that it exclusively applies to all falsifications of residence certificates.
(People vs. Po Giok To, 96 Phil. 913, 919-920)
Special laws amending the Revised Penal Code are

subject to its provisions.
P.D. No. 533 is not a special law, entirely distinct from and unrelated to
the Revised Penal Code. From the nature of the penalty imposed which is in
terms of the classification and duration of penalties as prescribed in the
Revised Penal Code, which is not for penalties as are ordinarily imposed in
special laws, the intent seems clear that P.D. No. 533 shall be deemed as an
amendment of the Revised Penal Code, with respect to the offense of theft of
large cattle (Art. 310), or otherwise to be subject to applicable provisions
thereof such as Article 104 of the Revised Penal Code on civil liability of the
offender, a provision which is not found in the decree, but which could not
have been intended to be discarded or eliminated by the decree. Article 64 of
the same Code should, likewise, be applicable, under which the presence of
two mitigating circumstances, that of plea of guilty and extreme poverty,
without any aggravating circumstances to offset them, entitles the accused to a
lowering by one degree of the
penalty for the offense. (People vs. Macatanda, No. L-51368, Nov. 6,
1981, 109 SCRA 35, 40-41)
143
Chapter Two JUSTIFYING CIRCUMSTANCES AND
CIRCUMSTANCES WHICH EXEMPT FROM
CRIMINAL LIABILITY
The circumstances affecting criminal liability are:

I. Justifying circumstances (Art. 11)
II. Exempting circumstances (Art. 12), and other absolutory causes

(Arts. 20; 124, last par.; 280, last par.; 332; 344; etc.)
III. Mitigating circumstances (Art. 13)
IV. Aggravating circumstances (Art. 14)
V. Alternative circumstances (Art. 15) Imputability, defined.

Imputability is the quality by which an act may be ascribed to a person
as its author or owner. It implies that the act committed has been freely and
consciously done and may, therefore, be put down to the doer as his very own.
(Albert) Responsibility, defined.
Responsibility is the obligation of suffering the consequences of crime. It
is the obligation of taking the penal and civil consequences of the crime.
(Albert)
Imputability, distinguished from responsibility.

<-*
While imputability implies that a d e e d may be imputed to a person,

responsibility implies that the person must take the consequence of such a
deed. (Albert)
Meaning of "guilt."
Guilt is an element of responsibility, for a man cannot be made to
answer for the consequences of a crime unless he is guilty. (Albert)
144
I. Justifying Circumstances.
1. Definition
Justifying circumstances are those where the act of a person
is said to be in accordance with law, so that such person is deemed
not to have transgressed the law and is free from both criminal
and civil liability.
JUSTIFYING CIRCUMSTANCES Art. 11
Self-Defense
There is no civil liability, except in par. 4 of Art. 11, where
the civil liability is borne by the persons benefited by the act.
2. Basis of justifying circumstances.

The law recognizes the non-existence of a crime by expressly
stating in the opening sentence of Article 11 that the persons
therein mentioned "do not incur any criminal liability."
Art. 11. Justifying circumstances. — The following do not incur any

criminal liability:
1. Anyone w h o acts in defense of his person or rights, provided that the

following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or repel
it;
Third. Lack of sufficient provocation on the part of the person defending
himself.
2. Anyone who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural, or adopted brothers or sisters,
or of his relatives by affinity in the same degrees, and those by consanguinity
within the fourth civil degree, provided that the first and second requisites
prescribed in the next preceding circumstance are present, and the further
requisite, in case the provocation was given by the person attacked, that the
one making defense had no part therein.
3. Anyone w h o acts in defense of the person or rights of a stranger,
provided that the first and second requisites Self-Defense
mentioned in the first circumstance of this article are present and that the
person defending be not induced by revenge, resentment or other evil
motive.
4. Any person who, in order to avoid an evil or injury, does an act which
causes damage to another, provided that the following requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it.
Third. That there be no other practical and less harmful means of
preventing it.
145
Art. 11 JUSTIFYING CIRCUMSTANCES
5. Any person w h o acts in the fulfillment of a duty or in the lawful

exercise of a right or office.
6. Any person w h o acts in obedience to an order issued by a superior
for some lawful purpose.
There is no crime committed, the act being justified.

In stating that the persons mentioned therein "do not incur any criminal
liability," Article 11 recognizes the acts of such persons as
justified. Such persons are not criminals, as there is no crime committed.
Burden of proof.
The circumstances mentioned in Art. 11 are matters of defense and it is
incumbent upon the accused, in order to avoid criminal liability, to prove the
justifying circumstance claimed by him to the satisfaction of the court.
Self-defense.
Well-entrenched is the rule that where the accused invokes selfdefense,
it is incumbent upon him to prove by clear and convincing evidence that he
indeed acted in defense of himself. He must rely on the strength of his own
evidence and not on the weakness of the prosecution. For, even if the
prosecution evidence is weak, it could not be disbelieved after the accused
himself had admitted the killing.
146
JUSTIFYING CIRCUMSTANCES Art. 11 Self-Defense
Par. 1
(People vs. Sazon, G.R. No. 89684, Sept. 18,1990,189 SCRA 700,704; People vs.
Rey, G.R. No. 80089, April 13, 1989, 172 SCRA 149, 156; People vs. Ansoyon,
75 Phil. 772, 777)
Self-defense, must be proved with certainty by sufficient, satisfactory
and convincing evidence that excludes any vestige of criminal aggression on
the part of the person invoking it and it cannot be justifiably entertained
where it is not only uncorroborated by any separate competent evidence but,
in itself, is extremely doubtful. (People vs. Mercado, No. L-33492, March 30,
1988, 159 SCRA 453,
458; People vs. Lebumfacil, Jr., No. L-32910, March 28, 1980, 96 SCRA 573,
584)
In self-defense, the burden of proof rests upon the accused. His duty is to
establish self-defense by clear and convincing evidence, otherwise, conviction
would follow from his admission that he killed the victim. He must rely on the
strength of his own evidence and not on the weakness of that for the
prosecution. (People vs. Clemente, G.R. No. L-23463, September 28, 1967, 21
SCRA 261; People vs.
Talaboc, Jr., G.R. No. L-25004, October 31,1969,30 SCRA 87; People vs.
Ardisa, G.R. No. L-29351, January 23,1974,55 SCRA 245; People vs. Montejo,
No. L-68857, Nov. 21, 1988, 167 SCRA 506, 512; People vs. Corecor, No. L-
63155, March 21, 1988, 159 SCRA 84, 87)
The plea of self-defense cannot be justifiably entertained where it is not
only uncorroborated by any separate competent evidence but in itself is
extremely doubtful. (People vs. Flores, L-24526, February 29,
1972,43 SCRA 342; Ebajan vs. Court of Appeals, G.R. Nos. 77930-31, Feb. 9,
1989, 170 SCRA 178, 189; People vs. Orongan, No. L-32751,
Dec. 21,1988,168 SCRA 586, 597-598; People vs. Mendoza, [CA] 52
O.G. 6233)
Par. 1. - SELF-DEFENSE.
Anyone who acts in defense of his person or rights, provided that the
following circumstances concur:
First. Unlawful aggression;
Second. Reasonable necessity of the means employed to prevent or
repel it;
Third. Lack of sufficient provocation on the part of the person
defending himself.
Rights included in self-defense.
147
Par. 1 Self-Defense
Self-defense includes not only the defense of the person or body of the
one assaulted but also that of his rights, that is, those rights the enjoyment of
which is protected by law.
"Aside from the right to life on which rests the legitimate defense of our
person, we have the right to property acquired by us, and the right to honor
which is not the least prized of man's patrimony." (1 Viada, 172, 173, 5th
edition)
Reason why penal law makes self-defense lawful.

Because it would be quite impossible for the State in all cases to prevent
aggression upon its citizens (and even foreigners, of course) and offer
protection to the person unjustly attacked. On the other hand, it cannot be
conceived that a person should succumb to an unlawful aggression without
offering any resistance. (Guevara)
The law on self-defense embodied in any penal system in the civilized
world finds justification in man's natural instinct to protect, repel, and save
his person or rights from impending danger or peril; it is based on that
impulse of self-preservation born to man and part of his nature as a human
being. To the Classicists in penal law, lawful defense is grounded on the
impossibility on the part of the State to avoid a present unjust aggression and
protect a person unlawfully attacked, and therefore it is inconceivable for the
State to require that the innocent succumb to an unlawful aggression without
resistance, while to the Positivists, lawful defense is an exercise of a right, an
act of social justice done to repel the attack of an aggression. (Castanares vs.
Court of Appeals, Nos. L-41269-70, Aug. 6, 1979, 92 SCRA 567, 571-572;
People vs. Boholst-Caballero, No. L-23249, Nov. 25, 1974,
61 SCRA 180, 185)
Requisites of self-defense.
There are three requisites to prove the claim of self-defense as stated in
paragraph 1 of Article 11 of the Revised Penal Code, namely: (1) unlawful
aggression; (2) reasonable necessity of the means employed to prevent or repel
it; and (3) lack of sufficient provocation on the part of the person defending
himself. (People vs. Uribe, G.R. Nos.
76493-94, Feb. 26,1990, 182 SCRA 624, 630-631; People vs. Delgado, G.R. No.
79672, Feb. 15, 1990, 182 SCRA 343, 349-350; People vs.
148
Par. 1
Batas, G.R. Nos. 84277-78, Aug. 2, 1989, 176 SCRA 46, 53; People vs. Canete,
G.R. No. 82113, July 5,1989,175 SCRA 111, 116; People vs. Bayocot, G.R. No.
55285, June 28, 1989, 174 SCRA 285, 291)
First requisite of self-defense.

The first requisite of self-defense is that there be unlawful aggression on
the part of the person injured or killed by the accused.
Unlawful aggression is an indispensable requisite.

It is a statutory and doctrinal requirement that for the justifying
circumstance of self-defense, the presence of unlawful aggression is a condition
sine qua non. There can be no self-defense, complete or incomplete, unless the
victim has committed an unlawful aggression against the person defending
himself. (People vs. Sazon, G.R. No. 89684, Sept. 18, 1990, 189 SCRA 700, 704;
People vs. Bayocot, G.R. No. 55285, June 28,1989,174 SCRA 285,291, citing
Ortega vs. Sandiganbayan, G.R. No. 57664, Feb. 8, 1989, 170 SCRA 38;
Andres vs. CA, No. L-48957, June 23,1987,151 SCRA 268; People vs. Picardal,
No. 72936, June 18, 1987, 151 SCRA 170; People vs. Apolinario, 58
Phil. 586)
For the right of defense to exist, it is necessary that we be assaulted or
that we be attacked, or at least that we be threatened with an attack in an
immediate and imminent manner, as, for example, brandishing a knife with
which to stab us or pointing a gun to discharge against us. (1 Viada, 5 edicion,
173, p. 3275)
If there is no unlawful aggression, there is nothing to prevent or repel.
The second requisite of defense will have no basis.
In the case of People vs. Yuman, 61 Phil. 786, this rule was explained, as
follows:
"The act of mortally wounding the victim has not been preceded by
aggression on the part of the latter. There is no occasion to speak of
'reasonable necessity of the means employed' or of 'sufficient
provocation' on the part of one invoking legitimate self-defense, because
both circumstances presuppose unlawful aggression which was not
present in the
instant case." (p. 788)
149
Par. 1 Self-Defense
Aggression must be unlawful.

The first requisite of defense says that the aggression must be unlawful.
There are two kinds of aggression: (1) lawful, and (2) unlawful.
The fulfillment of a duty or the exercise of a right in a more or less
violent manner is an aggression, but it is lawful.
Thus, the act of a chief of police who used violence by throwing stones at
the accused when the latter was running away from him to elude arrest for a
crime committed in his presence, is not unlawful aggression, it appearing that
the purpose of the peace officer was to capture the accused and place him
under arrest. (People vs. Gayrama,
60 Phil. 796, 805)
So also, is the act of a policeman who, after firing five cautionary shots
into the air, aimed directly at the escaping detainee when he had already
reasons to fear that the latter would be able to elude him and his pursuing
companions. (Valcorza vs. People, No. L-28129,
Oct. 31, 1969, 30 SCRA 143, 149; See also Masipequiha vs. Court of Appeals,
G.R. No. 51206, Aug. 25, 1989, 176 SCRA 699, 708)
Article 249 of the new Civil Code provides that "(t)he owner or lawful
possessor of a thing has the right to exclude any person from the enjoyment
and disposal thereof. For this purpose, he may use such force as may be
reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property."
Thus, under the new Civil Code a person may use force or violence to
protect his property; and if in protecting his property such person uses force
to prevent its being taken by another, the owner of the property is not an
unlawful aggressor, because he is merely exercising a right.
Paramour surprised in the act of adultery cannot invoke

selfdefense if he killed the offended husband who was
assaulting him.
In a case, the Supreme Court, in denying the paramour's plea of self-
defense, said: "(E)ven though it were true and even if the deceased did
succeed in entering the room in which the accused (the paramour and the wife
of the deceased) were lying, and did immediately thereupon assault (the
paramour), giving him several blows with the bolo which (the deceased)
carried, that assault was natural and lawful, for the reason that it was made
150
Par. 1
by a deceived and offended husband in order to defend his honor and rights
by punishing the offender of his honor, and if he had killed his wife and (the
paramour), he would have exercised a lawful right and such acts would have
fallen within the sanction of Article 423 (now Art. 247) of the Penal Code . . .
The (paramour) well knew that by maintaining unlawful relations with (the
deceased's wife), he was performing an unlawful and criminal act and exposed
himself to the vengeance of the offended husband, and that, by their meeting
each other in the said house, he was running the danger of the latter's
surprising them there, as in fact it did occur." (U.S. vs. Merced, 39 Phil. 198,
202-203)
Meaning of unlawful aggression.

Unlawful aggression is equivalent to assault or at least threatened
assault of an immediate and imminent kind. (People vs. Alconga, 78 Phil. 366)
There is unlawful aggression when the peril to one's life, limb or right is either
actual or imminent. There must be actual physical force or actual use of
weapon. (People vs. Crisostomo, No. L-38180, Oct. 23, 1981, 108 SCRA 288,
298)
There must be an actual physical assault upon a person, or at least a
threat to inflict real injury.
In case of threat, the same must be offensive and positively strong,
showing the wrongful intent to cause an injury. (U.S. vs.
Guysayco, 13 Phil. 292, 295)
Unlawful aggression presupposes an actual, sudden, and unexpected
attack, or imminent danger thereof, and not merely a threatening or
intimidating attitude. (People vs. Pasco, Jr., No. L45715, June 24, 1985, 137
SCRA 137; People vs. Bayocot, G.R. No. 55285, June 28, 1989, 174 SCRA 285,
292; People vs. Rey, G.R. No. 80089, April 13, 1989, 172 SCRA 149, 156)
Unlawful aggression refers to an attack that has actually broken out or
materialized or at the very least is clearly imminent; it cannot consist in oral
threats or a merely threatening stance or posture. (People vs. Lachica, 132
SCRA 230 [1984]; People vs. Tac-an, G.R. Nos. 76338-39, Feb. 26, 1990, 182
SCRA 601, 613) There must be a real danger to life or personal safety.
(People vs. Cagalingan, G.R.
No. 79168, Aug. 3, 1990, 188 SCRA 313, 318)
There is unlawful aggression when the peril to one's life, limb
(People vs. Sumicad, 56 Phil. 643, 647), or right is either actual or imminent.
151
Par. 1 Self-Defense
When there is no peril to one's life, limb or right, there is no unlawful

aggression.
Thus, the act of the deceased in preventing the accused from inflicting a
retaliatory blow on the person who had boxed the accused is not unlawful
aggression. (People vs. Flores, C.A., 47
O.G. 2969)
Where the deceased, after kidding the accused, another
Constabulary soldier acting as sentry and singing, told the latter that he had
no voice for singing and, after words were exchanged and while still in a spirit
of fun, the deceased seized the accused by the throat, whereupon the latter
killed the deceased with his rifle, it was held that the fact that the deceased
seized the accused by the throat and exerted pressure thereon in one of his
frolics which he had persistently kept up with notorious imprudence, and in
spite of the opposition of the accused, cannot be considered as an illegal
aggression in the case of two companions in arms quartered in the same
barracks. (U.S. vs. Padilla, 5 Phil. 396)
Where the deceased merely held the hands of the son of the accused to
request him (the son) to release the knife in order that nothing untoward
might happen, but he refused to do so, and in order to avoid bloodshed, the
deceased tried to wrest the knife from him and in so doing pressed him against
a coconut tree, without the least intention of harming him, the father was not
justified in killing the deceased, because there was no unlawful aggression on
the part of the latter. (People vs. Yncierto, C.A., 44 O.G. 2774)
Peril to one's life.

1. Actual — that the danger must be present, that is, actually in
existence.
152
Self-Defense Par. 1
Example:
U.S. vs. Jose Laurel

(22 Phil. 252)
Facts: On the night of December 26, 1909, while the girl Concepcion Lat
was walking along the street, on her way from the house of Exequiel Castillo,
situated in the pueblo of Tanauan, Province of Batangas, accompanied by
several young people, she was approached by Jose Laurel who suddenly kissed
her and immediately thereafter ran off in the direction of his house, pursued
by the girl's companions, among whom was the master of the house above-
mentioned, Exequiel Castillo, but they did not overtake him.
Early in the evening of the 28th of December, Jose Laurel went to the
parochial building, in company with several young people, for the purpose of
attending an entertainment which was to be held there. While sitting in the
front row of chairs, and while the director of the college was delivering a
discourse, Jose Laurel was approached by Domingo Panganiban who told him
that Exequiel Castillo wished to speak with him, to which Laurel replied that
he should wait a while and thereupon Panganiban went away. A short time
afterwards, he was also approached by Alfredo Yatco who gave him a similar
message, and soon afterwards Felipe Almeda came up and told him that
Exequiel Castillo was waiting for him on the groundfloor of the house. This
being the third summons addressed to him, he arose and went down to
ascertain what the said Exequiel wanted. When they met, Exequiel asked
Laurel why he kissed his (Exequiel's) sweetheart, and on Laurel's replying
that he had done so because she was very fickle and prodigal of her use of the
word "yes" on all occasions, Exequiel said to him that he ought not to act that
way and immediately struck him a blow on the head with a cane or club,
which assault made Laurel dizzy and caused him to fall to the ground in a
sitting posture and that, as Laurel feared that his aggressor would continue to
assault him, he took hold of the pocketknife which he was carrying in his
pocket and therewith stabbed Exequiel. Among the wounds inflicted on
Exequiel, the wound in the left side of his breast was the most serious on
account of its having fully penetrated the lungs and caused him to spit blood.
He would have died, had it not been for the timely medical aid rendered him.
Held: The defensive act executed by Jose Laurel was attended by the
three requisites of illegal aggression on the part of Exequiel Castillo, there
being lack of sufficient provocation on the part of Laurel, who did not
provoke the occurrence complained of, nor did he direct that
Exequiel Castillo be invited to come down from the parochial building
Par. 1 Self-Defense
153
and arrange the interview in which Castillo alone was interested, and, finally,
because Laurel, in defending himself with a pocketknife against the assault
made upon him with a cane, which may also be a deadly weapon, employed
reasonable means to prevent or repel the same.
2. Imminent — that the danger is on the point of happening. It is not

required that the attack already begins, for it may be too late.
Example:
People vs. Cabungcal

(51 Phil. 803)
Facts: On March 21,1926, the accused invited several persons to a picnic

in a fishery on his property in the barrio of Misua, municipality of Infanta,
Province of Tayabas. They spent the day at said fishery and in the afternoon
returned in two boats, one steered by the accused and the other by an old
woman named Anastacia Penaojas. Nine persons were in the boat steered by
the accused, the great majority of whom were women, and among them the
accused's wife and son and a nursing child, son of a married couple, who had
also gone in his boat. The deceased Juan Loquenario was another passenger in
his boat. Upon reaching a place of great depth, the deceased rocked the boat
which started it to take water, and the accused, fearing the boat might capsize
asked the deceased not to do it. As the deceased paid no attention to this
warning and continued rocking the boat, the accused struck him on the
forehead with an oar. The deceased fell into the water and was submerged,
but a little while after appeared on the surface having grasped the side of the
boat, saying that he was going to capsize it and started to move it with this end
in view, seeing which the women began to cry, whereupon the accused struck
him on the neck with the same oar, which submerged the deceased again. The
deceased died as a consequence.
Held: Due to the condition of the river at the point where the deceased
started to rock the boat, if it had capsized, the passengers would have run the
risk of losing their lives, the majority of whom were women, especially the
nursing child. The conduct of the deceased in rocking the boat until the point
of it having taken water and his insistence on this action in spite of the
accused's warning, gave rise to the belief on the part of the accused that it
would capsize if he did not separate the deceased from the boat in such a
manner as to give him no time to accomplish his purpose. It was necessary to
disable him momentarily. For this purpose, the blow given him by the accused
on the forehead with an oar was the least that could reasonably have been
done. And this consideration militates with greater weight with respect to the
second blow given in his neck with the same oar, because then the danger was
154
Par. 1
greater than the boat might upset, especially as the deceased had expressed his
intention to upset it.
Although the case involves defense of relatives and at the same time
defense of strangers, it is cited here because unlawful aggression is also a
requisite in defense of relatives and in defense of strangers and has the same
meaning.
Peril to one's limb.

When a person is attacked, he is in imminent danger of death or bodily
harm.
The blow with a deadly weapon may be aimed at the vital parts of his
body, in which case there is danger to his life; or with a less deadly weapon or
any other weapon that can cause minor physical injuries only, aimed at other
parts of the body, in which case, there is danger only to his limb.
The peril to one's limb may also be actual or only imminent.
Peril to one's limb includes peril to the safety of one's person from
physical injuries.
An attack with fist blows may imperil one's safety from physical
injuries. Such an attack is unlawful aggression. (People vs. Montalbo, 56 Phil.
443)
There must be actual physical force or actual use of

weapon.
The person defending himself must have been attacked with actual
physical force or with actual use of weapon.
Thus, insulting words addressed to the accused, no matter how
objectionable they may have been, without physical assault, could not
constitute unlawful aggression. (U.S. vs. Carrero, 9 Phil.
544)
A light push on the head with the hand does not constitute unlawful
aggression. (People vs. Yuman, 61 Phil. 786) A mere push or a shove, not
followed by other acts, does not constitute unlawful aggression. (People vs.
Sabio, G.R. No. L-23734, April 27, 1967)
But a slap on the face is an unlawful aggression. Two persons met in the
street. One slapped the face of the other and the latter repelled it by clubbing
him and inflicting upon him less serious physical injury. Held: The act of
slapping another constituted the use of force qualifying an unlawful
aggression. (Decision of the
Supreme Court of Spain of January 20, 1904; People vs. Roxas, 58 Phil. 733)
155
Par. 1 Self-Defense
Reason why slap on the face constitutes unlawful
aggression.
Since the face represents a person and his dignity, slapping it is a serious
personal attack. It is a physical assault coupled with a willful disregard, nay, a
defiance, of an individual's personality. It may, therefore, be frequently
regarded as placing in real danger a person's dignity, rights and safety.
(People vs. Sabio, G.R. No. L-23734, April 27, 1967)
Mere belief of an impending attack is not sufficient.

Mere belief of an impending attack is not sufficient. Neither is an
intimidating or threatening attitude. Even a mere push or shove not followed
by other acts placing in real peril the life or personal safety of the accused is
not unlawful aggression. (People vs. Bautista, 254 SCRA 621)
"Foot-kick greeting" is not unlawful aggression.

Teodoro Sabio was squatting with a friend, Irving Jurilla, in a plaza.
Romeo Bacobo and two others — Ruben Minosa and Leonardo Garcia —
approached them. All of them were close and old friends.
Romeo Bacobo then asked Sabio where he spent the holy week. At the same
time, he gave Sabio a "foot-kick greeting," touching Sabio's foot with his own
left foot. Sabio thereupon stood up and dealt Romeo Bacobo a fist blow,
inflicting upon him a lacerated wound, 3/4 inch long, at the upper lid of the
left eye. It took from 11 to 12 days to heal and prevented Romeo Bacobo from
working during said period as employee of Victorias Milling Co., Inc.
Held: A playful kick at the foot by way of greeting between friends may
be a practical joke, and may even hurt; but it is not a serious or real attack on
a person's safety. It may be a mere slight provocation. (People vs. Sabio, 19
SCRA 901)
No unlawful aggression, because there was no imminent

and real danger to the life or limb of the accused.
If, indeed, Rillamas did take hold of the barrel of appellant's rifle or
even tried to grab it, we do not believe it was justified for appellant "to
remove the safety lock and fire" his weapon. In their relative positions,
appellant had more freedom of action than the deceased who was sandwiched
among the three other passengers within the small area of the calesa in which
they were. In other words, between the two of them, appellant had the better
chance to win in the struggle for the rifle. (People vs. Riduca, No. L-26729,
Jan. 21,1974, 55 SCRA
190, 199)
True, the deceased acted rather belligerently, arrogantly, and
menacingly at the accused-appellant, but such behavior did not give rise to a
156
Par. 1
situation that actually posed a real threat to the life or safety of accused-
appellant. The peril to the latter's life was not imminent and actual. To
constitute unlawful aggression, it is necessary that an attack or material
aggression, an offensive act positively determining the intent of the aggressor
to cause an injury shall have been made.
(People vs. Macaso, No. L-30489, June 30, 1975, 64 SCRA 659, 665666)
A strong retaliation for an injury or threat may amount to

an unlawful aggression.
When a person who was insulted, slightly injured or threatened, made a
strong retaliation by attacking the one who gave the insult, caused the slight
injury or made the threat, the former became the offender, and the insult,
injury or threat should be considered only as a provocation mitigating his
liability. (U.S. vs. Carrero, 9 Phil. 544) In this case, there is no self-defense.
Retaliation is not self-defense.

Retaliation is different from an act of self-defense. In retaliation, the
aggression that was begun by the injured party already ceased to exist when
the accused attacked him. In self-defense, the aggression was still existing
when the aggressor was injured or disabled by the person making a defense.
Thus, when a person had inflicted slight physical injuries on another,
without intention to inflict other injuries, and the latter
157
Par. 1
Self-Defense
attacked the former, the one making the attack was an unlawful
aggressor. The attack made was a retaliation. But where a person is about to
strike another with fist blows and the latter, to prevent or repel the blows, stabs
the former with a knife, the act of striking with fist blows is an unlawful
aggression which may justify the use of the knife. If the knife is a reasonable
means, there is self-defense.
The attack made by the deceased and the killing of the

deceased by defendant should succeed each other
without appreciable interval of time.
In order to justify homicide on the ground of self-defense, it is essential
that the killing of the deceased by the defendant be simultaneous with the
attack made by the deceased, or at least both
acts succeeded each other without appreciable interval of time. (U.S. vs. Ferrer,
1 Phil. 56)
When the killing of the deceased by the accused was after the attack made by the
deceased, the accused must have no time nor occasion for
deliberation and cool thinking.
The deceased drew his revolver and levelled it at the accused who,
sensing the danger to his life, sidestepped and caught the hand of the deceased
with his left, thus causing the gun to drop to the floor. Immediately, the
accused drew his knife, opened it and stabbed the deceased in the abdomen.
The fact that when the accused held the right hand of the deceased,
which carried the gun, the weapon fell to the floor could not be taken to mean
that the unlawful aggression on the part of the deceased had ceased. The
incident took place at nighttime in the house of a relative of the deceased;
among those present were a brother and a cousin of the deceased, said cousin
having a criminal record; and the deceased himself had been indicted for
illegal possession of firearm and for discharge of firearm. Under such
circumstances, the accused could not be expected to have acted with all the
coolness of a person under normal condition. Uppermost in his mind at the
time must have been the fact that his life was in danger and that to save
himself he had to do something to stop the aggression. He had no time nor
occasion for deliberation and cool thinking because it was imperative for him
to act on the spot. (People vs. Arellano, C.A., 54
O.G. 7252)
158
Par. 1
The unlawful aggression must come from the person who
was attacked by the accused.
Although the accused was unlawfully attacked, nevertheless, the
aggressor was not the deceased but another person. Consequently, this
unlawful aggression cannot be considered in this case as an element of self-
defense, because, in order to constitute an element of self-defense, the unlawful
aggression must come, directly or indirectly, from the person who was
subsequently attacked by the accused. It has been so held by the Supreme
Court of Spain in its decision of May 6,1907; nor can such element of unlawful
aggression be considered present when the author thereof is unknown, as was
held in the decision of February 27,1895, of said Supreme Court. (People vs.
Gutierrez, 53 Phil. 609, 611)
The alleged act of the victim in placing his hand in his pocket, as if he
was going to draw out something, cannot be characterized as unlawful
aggression. On the other hand, the accused was the aggressor. His act of
arming himself with a bolo and following and overtaking the group of the
victim shows that he had formed the resolution of liquidating the victim.
There being no unlawful aggression, there could be no self-defense. (People vs.
Calantoc, No. L-27892, Jan. 31, 1974, 55 SCRA 458, 461, 463-464)
A public officer exceeding his authority may become an

unlawful aggressor.
Thus, a provincial sheriff who, in carrying out a writ of execution,
exceeded his authority by taking against the will of the judgment debtor
personal property with sentimental value to the latter, although other personal
property sufficient to satisfy the claim of the plaintiff was made available to
said sheriff, was an unlawful aggressor and the debtor had a right to repel the
unlawful aggression. (People vs. Hernandez, 59 Phil. 343)
The lawful possessor of a fishing net was justified in using force to repel
seizure by a peace officer who was making it without order from the court.
(People vs. Tilos, [CA] 36 O.G. 54)
Nature, character, location, and extent of wound of the

accused allegedly inflicted by the injured party may belie
claim of selfdefense.
1. The accused, claiming self-defense, exhibited a small
scar (1 1/2 inches long) caused by an instrument on his head. Held: The
exhibition of a small wound shortly after the occurrence does not meet
the requirement for — paraphrasing the Supreme Court — "if in order
159
Par. 1 Self-Defense
to be exempt from military service there are those who mutilate
themselves or cause others to mutilate them, who would not wound
himself slightly in order to escape" the penalty of reclusion temporal
prescribed for the crime of homicide? (People vs. Mediavilla, 52 Phil. 94,
96)
2. The location, number and seriousness of the stab wounds inflicted on the
victims belie the claim of self-defense. One of the victims alone sustained
twenty-one (21) wounds. (People vs. Batas, G.R. Nos. 84277-78, Aug. 2,
1989, 176 SCRA 46, 53, 54)
3. The nature, character, location and extent of the wounds suffered by the
deceased belie any supposition that it was the deceased who was the
unlawful aggressor. "The nature and number of wounds inflicted by an
assailant [are] constantly and unremittingly considered important
indicia which disprove a plea of self-defense." (People vs. Ganut, G.R.
No. L-34517, Nov. 2,1982,118 SCRA 35, 43)
The deceased suffered three stab wounds, two of which were fatal, and
one incised wound. (People vs. Marciales, No. L-61961, Oct. 18, 1988, 166
SCRA 436, 443)
4. Appellant's theory of self-defense is negatived by the nature and location
of the victim's wounds which, having a rightto-left direction, could not
have possibly been inflicted by a right-handed person in front of the
victim with a two-feet long bolo. (People vs. Labis, No. L-22087, Nov. 15,
1967, 21 SCRA 875, 882)
5. In view of the number of wounds of the deceased, nineteen (19) in
number, the plea of self-defense cannot be seriously entertained. So it has
been constantly and uninterruptedly held by the Supreme Court from
U.S. vs. Gonzales (8 Phil.
443 [1907]) to People vs. Constantino (L-23558, Aug. 10, 1967, 20 SCRA
940), a span of sixty (60) years. (People vs. Panganiban, No. L-22476, Feb.
27, 1968, 22 SCRA 817,
823)
6. The accused was the only eyewitness to the crime. He admitted that
he killed the deceased, but advanced the claim that he acted in
self-defense. Held: The actual, undisputed, physical facts flatly
contradict the whole theory of self-defense. The nature, character,
location and extent of the wound, as testified to by the doctor who
had examined the wound, clearly show that the deceased was
struck either from behind or while his body was in a reclining
160
Par. 1
position, from which it follows that the accused did not act in self-
defense. (People vs. Tolentino, 54 Phil. 77, 80)
Improbability of the deceased being the aggressor belies

the claim of self-defense.
It was unlikely that a sexagenarian would have gone to the extent of
assaulting the 24-year-old accused who was armed with a gun and a bolo, just
because the latter refused to give him a pig. (People vs. Diaz, No. L-24002, Jan.
21, 1974, 55 SCRA 178, 184)
It is hard to believe that the deceased, an old man of 55 years sick with
ulcer, would still press his attack and continue hacking the accused after
having been seriously injured and had lost his right hand. (People vs. Ardisa,
No. L-29351, Jan. 23, 1974, 55 SCRA 245, 253-254)
The fact that the accused declined to give any statement

when he surrendered to a policeman is inconsistent with
the plea of self-defense.
When the accused surrendered to the policemen, he declined to give any
statement, which is the natural course of things he would have done if he had
acted merely to defend himself. A protestation of innocence or justification is
the logical and spontaneous reaction of a man who finds himself in such an
inculpatory predicament as that in which the policemen came upon him still
clutching the death weapon and his victim dying before him. (People vs.
Manansala, No. L-23514, Feb. 17, 1970, 31 SCRA 401, 404)
The accused did not act in self-defense because, if he had done so, that
circumstance would have been included in his confession. He never declared
in his confession that he acted in self-defense. Had he acted in self-defense,
he should have reported the incident to the police of the three towns, the
poblacion of which he passed when he fled from the scene of the incident.
(People vs. De la Cruz, No. L-45485, Sept. 19, 1978, 85 SCRA 285, 291; See
also People vs. Delgado, G.R.
No. 79672, Feb. 15, 1990, 182 SCRA 343, 350)
Physical fact may determine whether or not the accused

acted in self-defense.
In People vs. Dorico (No. L-31568, Nov. 29, 1973, 54 SCRA
172, 184), where the accused claimed self-defense by alleging that he stabbed
the victim twice when the latter lunged at the accused to grab the latter's bolo,
161
Par. 1 Self-Defense
it was observed that if this were true, the victim would have been hit in front.
The evidence showed, however, that the wounds were inflicted from behind.
The physical fact belies the claim of self-defense. The revolver of the
deceased was still tucked inside the waistband of his pants which is indicative
of his unpreparedness when he was fired upon simultaneously by the accused
with their high-calibered weapons. The fact that the deceased received a total
of 13 gunshot wounds is inconsistent with the claim that the deceased was fired
upon in selfdefense. (People vs. Perez, No. L-28583, April 24,1974,56 SCRA
603, 610)
In People vs. Aquino (No. L-32390, Dec. 28, 1973, 54 SCRA 409), the plea
of self-defense was sustained. There were conflicting versions as to how the
victim was shot but the Supreme Court sustained the version of the accused as
being in accord with the physical evidence. The prosecution tried to prove that
the victim was standing about two or three meters away from the truck where
the accused was seated as driver and that the accused, without any exchange
of words, shot the victim. The accused, on the other hand, claimed that the
victim went up the running board of the truck, after pulling out a "balisong,"
and held on to the windshield frame. When the victim lunged with his knife,
the accused leaned far right, at the same time parrying the hand of the victim
who switched to a stabbing position and, at that moment, the accused, who
was already leaning almost prone on the driver's seat, got his gun from the
tool box and shot the victim. The Court considered the physical objective facts
as not only consistent with, but confirming strongly, the plea of self-defense.
The direction and trajectory of the bullets would have been different had the
victim been standing upright two or three meters to the left of the truck.
When the aggressor flees, unlawful aggression no longer

exists.
When unlawful aggression which has begun no longer exists, because the
aggressor runs away, the one making a defense has no more right to kill or even
to wound the former aggressor.
People vs. Alconga, et al.

(78 Phil. 366)
Facts: The deceased was the banker in a game of black jack.
The accused posted himself behind the deceased acting as a spotter of
the latter's cards and communicating by signs to his partner. Upon
discovering the trick, the deceased and the accused almost came to
blows. Subsequently, while the accused was seated on a bench the
deceased came and forthwith gave a blow with a "pingahan," but the
162
Par. 1
accused avoided the blow by crawling under the bench. The deceased
continued with second and third blows, and the accused in a crawling
position fired with his revolver. A hand to hand fight ensued, the
deceased with his dagger and the accused using his bolo. Having
sustained several wounds, the deceased ran away, but was followed by
the accused and another fight took place, during which a mortal blow
was delivered by the accused, slashing the cranium of the deceased.
Held: There were two stages in the fight between the accused and
the deceased. During the first stage of the fight, the accused in inflicting
several wounds upon the deceased acted in self-defense, because then the
deceased, who had attacked the accused with repeated blows, was the
unlawful aggressor. But when the deceased after receiving several
wounds, ran away, from that moment there was no longer any danger to
the life of the accused who, being virtually unscathed, could have chosen
to remain where he was and when he pursued the deceased, fatally
wounding him upon overtaking him, Alconga was no longer acting in
self-defense, because the aggression begun by the deceased ceased from
the moment he took to his heels.
In a case where the deceased, who appeared to be the first aggressor,
ran out of bullets and fled, and the accused pursued him and, after overtaking
him, inflicted several wounds on the posterior side of his body, it was held that
in such a situation the accused should have stayed his hand, and not having
done so he was guilty of homicide. (People vs. Del Rosario, C.A., 58 O.G. 7879,
citing decisions
of the Supreme Court)
Retreat to take more advantageous position.

If it is clear that the purpose of the aggressor in retreating is to take a
more advantageous position to insure the success of the attack already begun
by him, the unlawful aggression is considered still
continuing, and the one making a defense has a right to pursue him in his
retreat and to disable him.
No unlawful aggression when there is agreement to fight.

1. No unlawful aggression in concerted fight, as when the accused and
the deceased, after an altercation in a bar, agreed to fight, went to
a store and purchased two knives; that thereafter, the accused
repeatedly expressed his desire and wish to the deceased not to
fight, and that the former begged the latter that there be no fight
between them, and that the deceased paid no heed to such request
163
Par. 1 Self-Defense
and attacked the accused; but the accused succeeded in killing the
deceased. It was held that the aggression was reciprocal and
legitimate as between two contending parties. (U.S. vs. Navarro, 7
Phil. 713; See also People vs. Marasigan,
51 Phil. 701 and People vs. Gondayao, 30 SCRA 226)
2. There is agreement to fight in this case.

When the accused, pursued by the deceased, reached his
house, he picked up a pestle and, turning towards the deceased,
faced him, saying: "Come on if you are brave," and then attacking
and killing him. It was held that the accused did not act in self-
defense, for what he did after believing himself to be duly armed,
was to agree to the fight. (People vs. Monteroso, 51 Phil. 815)
3. The challenge to a fight must be accepted.

If the deceased challenged the accused to a fight and
forthwith rushed towards the latter with a bolo in his hand, so that
the accused had to defend himself by stabbing the deceased with a
knife, the accused, not having accepted the challenge, acted in self-
defense. (People vs. Del Pilar, C.A.,
44 O.G. 596)
Reason for the rule.

Where the fight is agreed upon, each of the protagonists is at once
assailant and assaulted, and neither can invoke the right of self-defense,
because aggression which is an incident in the fight is bound to arise from one
or the other of the combatants. (People vs.
Quinto, 55 Phil. 116)
When parties mutually agree to fight, it is immaterial who attacks or
receives the wound first, for the first act of force is an incident of the fight
itself and in no wise is it an unwarranted and unexpected aggression which
alone can legalize self-defense. (U.S. vs. Cortez, et al., 36 Phil. 837; People vs.
Marasigan, 51 Phil. 701; People vs. Lumasag, 56 Phil. 19; People vs. Neri, 77
Phil. 1091)
Aggression which is ahead of the stipulated time and

place is unlawful.
Where there was a mutual agreement to fight, an aggression ahead of
the stipulated time and place would be unlawful. The acceptance of the
challenge did not place on the offended party the burden of preparing to meet
164
Par. 1
an assault at any time even before reaching the appointed time and place for
the agreed encounter, and any such aggression was patently illegal. (Severino
Justo vs. Court of Appeals, 53 O.G. 4083)
Illustration:
A and B were in the office of a division superintendent of schools.
A and B had an altercation. A grabbed a lead paper weight from a table
and challenged B to go out, to fight outside the building. A left the office,
followed by B. When they were in front of the table of a clerk, B asked A
to put down the paper weight but instead A grabbed the neck and collar
of the polo shirt of B which was torn. B boxed A several times.
In this case, the aggression made by A which took place before he
and B could go out of the building is unlawful, notwithstanding their
agreement to fight.
One who voluntarily joined a fight cannot claim self-

defense.
The court a quo rejected the claim of self-defense interposed by the
appellant. We find that such plea cannot be availed of because no
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JUSTIFYING CIRCUMSTANCES
Art. 11
Par. 1 Self-Defense
unlawful aggression, so to speak, was committed by the deceased, Rodolfo

Saldo, and Hernando Caunte against the appellant. Appellant's version of the
incident was to the effect that he had come to the aid of Villafria at the latter's
call when Villafria boxed Mariano Dioso and engaged the group of Dioso,
Saldo and Caunte in a fight. In other words, he voluntarily joined the fight,
when he did not have to. He voluntarily exposed himself to the consequences
of a fight with his opponents. Granting arguendo that the first attack came
from Dioso or Saldo or Caunte, yet same cannot be considered an unlawful or
unexpected aggression. The first attack which came from either is but an
incident of the fight. (People vs. Kruse, C.A., 64 O.G. 12632)
The rule now is "stand ground when in the right."

The ancient common law rule in homicide denominated "retreat to the
wall," has now given way to the new rule "stand ground when in the right."
So, where the accused is where he has the right to be, the law does not
require him to retreat when his assailant is rapidly advancing upon him with
a deadly weapon. (U.S. vs. Domen, 37 Phil. 57)
The reason for the rule is that if one flees from an aggressor, he runs the
risk of being attacked in the back by the aggressor.
How to determine the unlawful aggressor.

In the absence of direct evidence to determine who provoked the
conflict, it has been held that it shall be presumed that, in the nature of the
order of things, the person who was deeply offended by the insult was the one
who believed he had a right to demand explanation of the perpetrator of that
insult, and the one who also struck the first blow when he was not satisfied
with the explanation offered. (U.S. vs. Laurel, 22 Phil. 252)
The circumstance that it was the accused, not the deceased, who had a
greater motive for committing the crime on the ground that the deceased had
already sufficiently punished the accused on account of his misbehavior and
because he was publicly humiliated, having gotten the worst of the fight
between the two inside the theater, leads the court to the conclusion that the
claim of self-defense is really untenable. (People vs. Berio, 59 Phil. 533)
Art. 11
Par. 1
166
Self-Defense
Unlawful aggression in defense of other rights.
Note that in the three classes of defense mentioned in paragraphs 1, 2
and 3 of Art. 11, the defense of rights requires also the first and second
requisites, namely, (1) unlawful aggression, and (2) reasonable necessity of the
means employed to prevent or repel it.
1. Attempt to rape a woman — defense of right to chastity.

a. Embracing a woman, touching her private parts and her
breasts, and throwing her to the ground for the
purpose of raping her in an uninhabited place when it was
twilight, constitute an attack upon her honor and, therefore,
an unlawful aggression. (People vs.
De la Cruz, 61 Phil. 344)
b. Placing of hand by a man on the woman's upper thigh is
unlawful aggression. (People vs. Jaurigue, 76 Phil. 174)
2. Defense of property.
Defense of property can be invoked as a justifying
circumstance only when it is coupled with an attack on the person of
one entrusted with said property. (People vs. Apolinar, C.A., 38
O.G. 2870)
3. Defense of home.
Violent entry to another's house at nighttime, by a person
who is armed with a bolo, and forcing his way into the house, shows
he was ready and looking for trouble, and the manner of his entry
constitutes an act of aggression. The owner of the house need not
wait for a blow before repelling the aggression, as that blow may
prove fatal. (People vs. Mirabiles, 45 O.G., 5th Supp., 277)
In this day and times when bold robberies and thieveries
are committed even under the very noses of the members of the
household and usually at night, courts must not hesitate to sustain
the theory of self-defense of the victim of thievery or robbery
when such thief or robber by overt acts shows aggression instead
of fear or desire to escape upon apprehension for certainly such
an intruder must be prepared not only to steal but to kill under
the
Art. 11
Par. 1
167
Self-Defense
circumstances. In the case at bar, even if the accused did not
actually see the victim assault him with the balisong, the mere fact
that the victim assaulted the accused under cover of darkness is
such unlawful aggression as would justify the accused to defend
himself. (People vs. Salatan, [CA] 69 O.G. 10134)
People vs. De la Cruz
(61 Phil. 344)
Facts: The accused, a woman, was walking home with a party

including the deceased, Francisco Rivera. It was already dark and they
were passing a narrow path. When the other people were far ahead, the
deceased who was following the accused suddenly threw his arms
around her from behind, caught hold of her breasts, kissed her, and
touched her private parts. He started to throw her down. When the
accused felt she could not do anything more against the strength of her
aggressor, she got a knife from her pocket and stabbed him.
Held: She was justified in making use of the knife in repelling
what she believed to be an attack upon her honor since she had no other
means of defending herself.
An attempt to rape a woman constitutes an aggression sufficient to put

her in a state of legitimate defense inasmuch as a woman's honor cannot but
be esteemed as a right as precious, if not more than her very existence. The
woman thus imperilled may kill her offender if that is the only means left for
her to protect her honor from so grave an outrage. (People vs. Luague, et al.,
62 Phil. 504)
People vs. Jaurigue

(76 Phil. 174)
Facts: The deceased was courting the accused in vain. One day,
the deceased approached her, spoke to her of his love which she flatly
refused, and he thereupon suddenly embraced and kissed her on
account of which the accused gave him fist blows and kicked him.
Thereafter, she armed herself with a fan knife, whenever she went out.
One week after the incident, the deceased entered a chapel, went to sit
by the side of the accused, and placed his hand on the upper part of her
right thigh. Accused pulled out her fan knife and with it stabbed the
deceased at the base of the left side of the neck, inflicting a mortal
wound.
168
Self-Defense
Held: The means employed by the accused in the defense of her
honor was evidently excessive. The chapel was lighted with electric
169
Par. 1 Self-Defense
lights, and there were already several people, including her father and
the barrio lieutenant, inside the chapel. Under the circumstances, there
was and there could be no possibility of her being raped.
The Supreme Court apparently considered in this case the existence of

unlawful aggression consisting in the deceased's placing his hand on the upper
portion of her right thigh. The accused was not given the benefit of complete
self-defense, because the means employed was not reasonable. If the accused
only gave the deceased fist blows or kicked him, to prevent him from going
further in his attempt to commit an outrage upon her honor, she would have
been completely justified in doing so.
People vs. Apolinar

(C.A., 38 O.G. 2870)
Facts: The accused, armed with a shotgun, was looking over his
land. He noticed a man carrying a bundle on his shoulder. Believing that
the man had stolen his palay, the accused shouted for him to stop, and as
he did not, the accused fired in the air and then at him, causing his
death.
Held: Defense of property is not of such importance as right to life,
and defense of property can be invoked as a justifying circumstance only
when it is coupled with an attack on the person of one entrusted with
said property.
Had the accused, who wanted to stop the thief then approaching him,
been attacked, say with a bolo, by that thief, he would have been justified in
shooting him, if the shotgun was the only available weapon for his defense.
In such case, there would be unlawful aggression on the part of the
deceased, which is required even in defense of one's property. It will be noted
that in paragraph 1 of Article 11, the opening clause, which is followed by the
enumeration of the three requisites, states: "anyone who acts in defense of his
person or rights." The word "rights" includes right to property. Hence, all the
three requisites of self-defense, particularly unlawful aggression, must also
concur in defense of property.
In the case of People vs. Goya, CA-G.R. No. 16373-R, Sept. 29, 1956, the
guard in a bodega surprised the injured party in the act of going out through
the door with a sack of palay. To prevent the latter from taking away a sack
of palay, the guard fired a shot at the injured party, inflicting less serious
170
Par. 1
physical injuries. Held: Since the injured party did not lay hands on the
guard or make any attempt to attack the latter, the guard cannot properly
and legally claim defense of property. There must be an attack by the one
stealing the property on the person defending it.
The belief of the accused may be considered in

determining the existence of unlawful aggression.
"A, in the peaceable pursuit of his affairs, sees B rushing rapidly toward
him, with an outstretched arm and a pistol in his hand, and using violent
menaces against his life as he advances. Having approached near enough in
the same attitude, A, who has a club in his hand, strikes B over the head
before or at the instant the pistol is discharged; and of the wound B dies. It
turns out the pistol was loaded with powder only, and that the real design of B
is only to terrify A. Will any reasonable man say that A is more criminal than
he would have been if there had been a bullet in the pistol? Those who hold
such doctrine must require that a man so attacked must, before he strikes the
assailant, stop and ascertain how the pistol is loaded — a doctrine which
would entirely take away the essential right of self-defense." (Lloyd's Report,
p. 160, cited in U.S. vs. Ah Chong, 15 Phil. 502-503)
There is self-defense even if the aggressor used a toy

pistol, provided the accused believed it was a real gun.
That Crispin Oscimina's gun turned out to be a toy pistol is
inconsequential, considering its strikingly similar resemblance to a real one
and defendant-appellant's belief that a real gun was being aimed at him.
(People vs. Boral, 11 C.A. Rep. 914)
Forcibly pushing picketers to let company trucks enter the compound is not
unlawful aggression against the rights of the picketers.
The act of the security officer of a strike-bound company in forcibly
pushing the picketers after he had ordered them to give way and let the
company trucks to enter the compound, but the picketers refused, does not
constitute unlawful aggression against the legitimate rights of the picketers as
would justify its repulsion with equal and reasonable force such as inflicting
physical injuries upon the officer, for what was under attack by said security
officer was not the right of picketing, but the picketers' act of remaining in the
passageway when the trucks wanted to get inside, which is not a part of the
picketing protected by law. (People vs. Calip, et al, 3 C.A. Rep. 808)
171
Par. 1 Self-Defense
Threat to inflict real injury as unlawful aggression.

A mere threatening or intimidating attitude, not preceded by an outward
and material aggression, is not unlawful aggression, because it is required that
the act be offensive and positively strong, showing the wrongful intent of the
aggressor to cause an injury.
Mere threatening attitude is not unlawful aggression.

U.S. vs. Guy-sayco
(13 Phil. 292)
Facts: As her husband had stayed away from home for more than
two weeks, remaining in the barrio of Dujat, distant about two and one-
half hours' walk from the town under the pretext that he was engaged in
field work, on the 20th of March, 1907, at about 2 p.m., the accused
decided to go to said barrio and join him. To this end she hired a
carromata, and after getting some clothes and other things necessary for
herself and husband, started out with her infant child and servant girl;
but before reaching the barrio and the camarin where her husband
ought to be, night came on, and at about 7 o'clock she alighted and
dismissed the vehicle after paying the driver. They had yet to travel
some distance. On seeing her husband's horse tied in front of a house,
she suspected that he was inside; thereupon she went to the steps leading
to the house, which was a low one, and then saw her husband sitting
down with his back toward the steps. She immediately entered the house
and encountered her husband, the deceased and the owners of the house
taking supper together. Overcome and blinded by jealousy she rushed at
Lorenza Estrada, attacked her with a pen knife that she carried and
inflicted five wounds upon her in consequence of which Lorenza fell to
the ground covered with blood and died a few moments afterwards.
The accused pleaded not guilty, and in exculpation she alleged
that, when Lorenza Estrada saw her and heard her remonstrate with
her husband, she being then upstairs, Lorenza at once asked what had
brought her there and manifested her intention to attack her with a
knife that she carried in her hand, whereupon the accused caught
172
Par. 1 Self-Defense
the deceased by the right hand in which she held the weapon, and immediately
grappled with her, and in the struggle that ensued she managed to get hold of a
pen knife that she saw on the floor close by; she could not say whether she
struck the deceased with it as she could
not account for what followed.
Held: Even though it was true that when the accused Emilia, made her
appearance, the deceased Lorenza arose with a knife in her hand
and in a threatening manner asked the accused what had brought her
there, such attitude, under the provisions of Article 8, No. 4, of the Penal Code
(Art. 11, par. 1, of the Revised Penal Code), does not constitute the unlawful
aggression, which, among others, is the first indispensable requisite upon which
exemption (justification) by self-defense may be sustained.
In order to consider that unlawful aggression was actually committed, it is

necessary that an attack or material aggression, an offensive act positively
determining the intent of the aggressor to cause an injury shall have been made;
a mere threatening or intimidating attitude is not sufficient to justify the
commission of an act which is punishable per se, and allow a claim of
justification on the ground that it was committed in self-defense.
Examples of threats to inflict real injury:

1. When one aims a revolver at another with the intention of
shooting him. (Dec. Sup. Ct. Spain, Sept. 29, 1905)
2. The act of a person in retreating two steps and placing his hand in
his pocket with a motion indicating his purpose to commit an
assault with a weapon. (Dec. Sup. Ct. Spain, June 26, 1891)
3. The act of opening a knife, and making a motion as if to make an
attack. (Dec. Sup. Ct. Spain, Oct. 24, 1895)
Note that in the above cases, the threatening attitude of the aggressor is
offensive and positively strong, showing the wrongful intent of the aggressor to
cause an injury.
When intent to attack is manifest, picking up a weapon is

sufficient unlawful aggression.
When the picking up of a weapon is preceded by circumstances
indicating the intention of the deceased to use it in attacking the
172
Par. 1 Self-Defense
Self-Defense
defendant, such act is considered unlawful aggression. (People vs. Javier, 46

O.G. No. 7, July, 1950)
Aggression must be real, not merely imaginary.

Thus, when the accused, disliking the intervention of the deceased in a
certain incident between the accused and a couple, armed himself with a gun
and went to the house of the deceased, and upon seeing the latter holding a
kris in his hand, shot him to death, there was no unlawful aggression,
notwithstanding the claim of the accused that the deceased was a man of
violent temper, quarrelsome and irritable, and that the latter might attack
him with the kris, because he merely imagined a possible aggression. The
aggression must be real, or, at least, imminent. (People vs. De la Cruz, 61 Phil.
422)
Aggression that is expected.

An aggression that is expected is still real, provided it is imminent.
It is well-known that the person who pursues another with the intent
and purpose of assaulting him does not raise his hand to discharge the blow
until he believes that his victim is within his reach.
In this case, it is not necessary to wait until the blow is about to be
discharged, because in order that the assault may be prevented it is not
necessary that it has been actually perpetrated. (U.S. vs. Batungbacal, 37 Phil.
382)
Second Requisite of Defense of Person or Right:

Reasonable necessity of the means employed to prevent
or repel it.
This second requisite of defense presupposes the existence of unlawful
aggression, which is either imminent or actual. Hence, in stating the second
requisite, two phrases are used, namely: (1) "to prevent" and (2) "to repel."
When we are attacked, the danger to our life or limb is either imminent or
actual. In making a defense, we prevent the aggression that places us in
imminent danger or repel the aggression that places us in actual danger. A
threat to inflict real injury places us in imminent danger. An actual physical
assault places us in actual danger.
In the case of U.S. us. Batungbacal, 37 Phil. 382, the Supreme
174
Par. 1
Court stated: "The law protects not only the person who repels an aggression
(meaning actual), but even the person who tries to prevent an aggression that
is expected (meaning imminent)."
The second requisite of defense means that (1) there be a necessity of the
course of action taken by the person making a defense, and (2) there be a
necessity of the means used. Both must
be reasonable.
The reasonableness of either or both such necessity depends on the
existence of unlawful aggression and upon the nature and extent of the
aggression.
The necessity to take a course of action and to use a

means of defense.
The person attacked is not duty-bound to expose himself to be wounded
or killed, and while the danger to his person or life subsists, he has a perfect
and indisputable right to repel such danger by wounding his adversary and, if
necessary, to disable him completely so that he may not continue the assault.
(U.S. vs. Molina, 19 Phil. 227)
The reasonableness of the necessity depends upon the

circumstances.
In emergencies where the person or life of another is imperilled, human
nature does not act upon processes of formal reason but in obedience to the
instinct of self-preservation. The reasonableness of the necessity to take a
course of action and the reasonableness of the necessity of the means employed
depend upon the circumstances of the case.
In a situation, like the one at bar, where the accused, who was then
unarmed, was being mauled with fistic blows by the deceased and his
companions for refusing their offer to drink wine, picked up a lead pipe within
his reach and with it struck the deceased on the forehead resulting in the
latter's death, the use by the accused of such lead pipe under the
circumstances is reasonable. That the accused did not select a lesser vital
portion of the body of the deceased to hit is reasonably to be expected, for in
such a situation, the accused has to move fast, or in split seconds, otherwise,
the aggression on his Self-Defense
person would have continued and his life endangered. (People vs. Ocana, C.A.,
67 O.G. 3313)
1. Necessity of the course of action taken.
175
Par. 1 Self-Defense
The necessity of the course of action taken depends on the
existence of unlawful aggression. If there was no unlawful
aggression or, if there was, it has ceased to exist, there would be no
necessity for any course of action to take as there is nothing to
prevent or to repel.
In determining the existence of unlawful aggression that
induced a person to take a course of action, the place and occasion
of the assault and the other circumstances must be considered.
a. Place and occasion of the assault considered.

The command given to the accused by the deceased in
a dark and an uninhabited place, for the purpose of playing a
practical joke upon him, "Lie down and give me your money
or else you die," made the accused act immediately by
discharging his pistol against the deceased. It was held that a
person under such circumstances cannot be expected to
adopt a less violent means of repelling what he believed was
an attack upon his life and property. (Dec. Sup. Ct. Spain,
March 17, 1885)
Similar illustration is given in the case of U.S.
vs. Ah Chong, 15 Phil. 501-502.
b. The darkness of the night and the surprise which characterized
the assault considered.
When the accused, while walking along in a dark street
at night with pistol in hand on the lookout for an individual
who had been making an insulting demonstration in front of
his house, was suddenly held from behind and an attempt
was made to wrench the pistol from him, he was justified in
shooting him to death, in view of the darkness and the
surprise which characterized the assault. The deceased
might be able to disarm the accused and to use the pistol
against the latter. (People vs. Lara, 48 Phil. 153)
176
Self-Defense
Art. 11 Par.
1
No necessity of the course of action taken.

When the deceased who had attacked Alconga ran away, there was no
necessity for Alconga to pursue and kill the deceased. (People vs. Alconga, 78
Phil. 366)
The theory of self-defense is based on the necessity on the part of the
person attacked to prevent or repel the unlawful aggression, and when the
danger or risk on his part has disappeared, his stabbing the aggressor while
defending himself should have stopped. (People vs. Calavagan, C.A. G.R. No.
12952-R, August 10, 1955)
The claim of self-defense is not credible as the accused narrated that he
had succeeded in disarming the victim of the piece of wood the latter was
allegedly carrying so that stabbing with such frequency, frenzy and force can
no longer be considered as reasonably necessary. (People
vs. Masangkay, No. L-73461, Oct. 27,1987,155 SCRA 113,122)
When the deceased who endeavored to set fire to the house of the
accused in which the two small children of the latter were sleeping was already
out of the house and prostrate on the ground, having been boloed by the
accused, there was no reasonable necessity of killing her. (U.S. vs. Rivera, 41
Phil. 472, 474)
While the accused might have been and doubtless was justified in
picking up the bamboo pole to keep his adversary at bay, he was not justified
in striking the head of the deceased with it, as he was not in any real danger of
his life, for his adversary, although armed with a bolo, had not attempted to
draw it, and limited his assault to an attempt to push the accused back to the
shallow pool into which he had been thrown at the outset of the quarrel. (U.S.
vs. Pasca, 28 Phil. 222, 226)
While there was an actual physical invasion of appellant's property
when the deceased chiselled the walls of his house and closed appellant's
entrance and exit to the highway, which he had the right to resist, the
reasonableness of the resistance is also a requirement of the justifying
circumstance of self-defense or defense of one's rights. When the appellant
fired his shotgun from his window, killing his two Victims, his resistance was
disproportionate to the attack. (People vs.
Narvaez, 121 SCRA 402-403)
When aggressor is disarmed.
177
Par. 1 Self-Defense
When the wife was disarmed by her husband after wounding him
seriously but she struggled to regain possession of the bolo, there was
Art. 11
Self-Defense Par. 1
a reasonable necessity for him to use said bolo to disable her, because he was
already losing strength due to loss of blood and to throw away the bolo would
only give her a chance to pick it up and again use it against him. (People vs.
Rabandaban, 85 Phil. 636, 637-638; People vs. Datinguinoo, 47 O.G. 765)
But when the defendant, who had been attacked by the deceased,
succeeded in snatching the bolo away from the latter, and the deceased already
manifested a refusal to fight, the defendant was not justified in killing him.
(People vs. Alviar, 56 Phil. 98, 101)
When only minor physical injuries are inflicted after

unlawful aggression has ceased to exist, there is still self-
defense if mortal wounds were inflicted at the time the
requisites of self-defense were present.
The fact that minor physical injuries were inflicted by the accused after
the unlawful aggression had ceased and after he had stabbed the deceased with
two mortal wounds, said mortal wounds having been inflicted at a time when
the requisites of complete selfdefense were still present, cannot and should not
affect the benefit of said complete self-defense in the absence of proof'that
those relatively small wounds contributed to or hastened the death of the
deceased. (People vs. Del Pilar, C.A., 44 O.G. 596)
This ruling should not be applied if the deceased, after receiving minor
wounds, dropped his weapon and signified his refusal to fight any longer, but
the accused hacked him to death. The reason is that the wound inflicted, after
the aggression had ceased, was the cause of death.
The person defending is not expected to control his blow.

Defense of person or rights does not necessarily mean the killing of the
unlawful aggressor. But the person defending himself cannot be expected to
think clearly so as to control his blow. The killing of the unlawful aggressor
may still be justified as long as the mortal wounds are inflicted at a time when
the elements of complete selfdefense are still present.
One is not required, when hard pressed, to draw fine distinctions as to
the extent of the injury which a reckless and infuriated assailant might
178
probably inflict upon him. (Brownell vs. People, 38 Mich. 732, cited in the
case of People vs. Sumicad, 56 Phil. 647)
The fact that the accused struck one blow more than was absolutelj'
necessary to save his own life, or that he failed to hold his hand so as to avoid
inflicting a fatal wound where a less severe stroke might have served the
purpose, would not negative self-defense, because the accused, in the heat of an
encounter at close quarters, was not in a position to reflect coolly or to wait
after each blow to determine the effects thereof. (U.S. vs. Macasaet, 35 Phil.
229; People vs. Espina, C.A., 49 O.G. 983)
And if it was necessary for the accused to use his revolver, he could
hardly, under the circumstances, be expected to take deliberate and careful
aim so as to strike a point less vulnerable than the body of his assailant. (U.S.
vs. Mack, 8 Phil. 701; U.S. vs. Domen, 37 Phil.
57)
When the aggression is so sudden that there is no time left to the one making a
defense to determine what course of action to take.
At the moment the deceased was about to stab the superior officer of the
accused, the latter hit the deceased with a palma brava. The trial court believed
that the accused should have only struck his hand to disable it, or only hit him
in a less vulnerable part of the body. Held: The trial court demanded too much
of the accused's wisdom, judgment and discretion during the split second he
had to think and
act to save his superior officer. (People vs. Pante, C.A., G.R. No. 5512, March
29, 1940)
In repelling or preventing an unlawful aggression, the one

defending must aim at his assailant, and not
indiscriminately fire his deadly weapon.
Even granting that while in a private discussion or quarrel with his wife,
appellant Galacgac was suddenly beaten twice on his head with an iron bar by
Pablo Soriano thus causing blood to ooze over his eyes, appellant Galacgac
certainly had no right to fire at random his unlicensed revolver. He knew that
there were many innocent persons in Soriano's house, namely, his (Galacgac's)
wife, his sister and brother-in-law. Besides, there were many inhabited houses
in the vicinity of house No. 1238 Anacleto Street. Of course, appellant Art. 11
Self-Defense Par. 1
Galacgac had a perfect and lawful right to defend himself against the
unjustified assault upon his person made by Pablo Soriano. However, because
179
Par. 1 Self-Defense
he did not aim at his assailant but instead indiscriminately fired his deadly
weapon at the risk of the lives and limbs of the innocent persons he knew were
in the place of occurrence, his act of defense was not exercised with due care.
However, there being no intent to kill, appellant Galacgac was held
liable for physical injuries. (People vs. Galacgac, C.A., 54 O.G. 1027)
2. Necessity of the means used.

The means employed by the person making a defense must
be rationally necessary to prevent or repel an unlawful aggression.
Thus in the following cases, there was no rational necessity to
employ the means used.
a. A sleeping woman, who was awakened by her brotherin-law
grasping her arm, was not justified in using a knife to kill
him as the latter did not perform any other act which could
be construed as an attempt
against her honor. (U.S. vs. Apego, 23 Phil. 391)
b. When a person was attacked with fist blows only, there was
no reasonable necessity to inflict upon the assailant a mortal
wound with a dagger. (People vs. Montalbo, 56 Phil. 443)
There was in this case a reasonable necessity to act by
using fist blows also. But there was no necessity to employ a
dagger to repel such an aggression.
c. When a man placed his hand on the upper thigh of a woman
seated on a bench in a chapel where there were many people
and which was well-lighted, there was no reasonable
necessity to kill him with a knife because there was no danger
to her chastity or honor. (People vs. Jaurigue, 76 Phil. 174)
There was in this case a reasonable necessity to stop
the deceased from further doing the same thing or more.
But there was no necessity to use a knife.
It is otherwise where the husband of the accused was kneeling over her
as she lay on her back on the ground and his hand choking her neck when she
pulled out the knife inserted at the left side of her husband's belt and plunged
it at his body hitting the left back portion just below the waist. There was
reasonable necessity of the use of the knife. (People vs. Boholst-Caballero, No.
L-23249, Nov. 25, 1974, 61 SCRA 180, 189)
180
The test of reasonableness of the means used.
Whether or not the means employed is reasonable, will depend upon the
nature and quality of the weapon used by the aggressor, his physical condition,
character, size and other circumstances, and those of the person defending
himself, and also the place and occasion of the assault.
Perfect equality between the weapon used by the one defending himself
and that of the aggressor is not required, because the person assaulted does not
have sufficient tranquility of mind to think, to calculate and to choose which
weapon to use. (People vs. Padua, C.A., 40 O.G. 998)
"Reasonable necessity of the means employed does not imply material
commensurability between the means of attack and defense. What the law
requires is rational equivalence, in the consideration of which will enter as
principal factors the emergency, the imminent danger to which the person
attacked is exposed, and the instinct, more than reason, that moves or impels
the defense, and the proportionateness thereof does not depend upon the harm
done, but rests upon the imminent danger of such injury." (People vs.
Encomienda, No. L-26750, Aug. 18, 1972, 46 SCRA 522, 534, quoting People
vs.
Lara, 48 Phil. 153; People vs. Paras, 9 Phil. 367)
As was already mentioned, the reasonableness of the means employed
will depend upon —
1. The nature and quality of the weapons:

a. Although as a general rule a dagger or a knife is more
dangerous than a club, the use of a knife or dagger, when
attacked with a club, must be deemed reasonable if it cannot
be shown that the person assaulted (1) had other available
means or (2) if there was other means, he could coolly choose
the less deadly weapon
181
to repel theJUSTIFYING CIRCUMSTANCES Art. 11assault.
Self-Defense Par. 1
(People vs. Padua,
C.A., 40 O.G. 998)
In the case of U.S. vs. Laurel, 22 Phil. 252, a similar ruling was applied.
The use of a bolo to repel the aggression by means of a stick, the use of a
knife against a rod, or a knife against a stick was held to be reasonable under
the circumstances. (People vs. Romero, C.A., 34 O.G. 2046)
But it was held that the use of a bayonet against a cane is not reasonable.
The accused could have warded off the blows made by the deceased with his
cane. If the accused had only drawn his bayonet in defense, that would have
been enough to discourage and prevent the deceased from further continuing
with his attack or sufficient to ward off the blows given by the deceased when
he attacked the accused. In stabbing the deceased with his bayonet, the
accused went beyond what was necessary to defend himself against the
unlawful aggression made by the deceased. (People vs. Onas, No. L-17771,
Nov. 29, 1962, 6 SCRA 688, 692-693)
Since the deceased was a gangster with a reputation for violence, the use
by the accused of a dagger to repel the persistent aggression by the deceased
with a wooden pestle is reasonably necessary under the circumstances. (People
vs. Ramilo, C.A., 44 O.G. 1255)
At a distance, stones hurled by the deceased, who was a known boxer,
big and strong, may constitute a graver danger than a bolo. In such case, the
use of a bolo was held reasonable. (People vs. Aguilario, C.A., 56 O.G. 757)
The use of a revolver against an aggressor armed with a bolo was held
reasonable, it appearing that the deceased was advancing upon the accused
and within a few feet of striking distance when the latter shot him. (U.S. vs.
Mack, 8 Phil. 701)
In the case of People vs. Maliwanag, No. L-30302,
Aug. 14,1974, 58 SCRA 323, 331-332, it was held that
181
there was reasonable necessity of the means employed to repel the

aggression from the deceased when the appellant's only recourse in
defending himself was to use his service pistol against one who
wielded a deadly balisong knife.
b. To use a firearm against a dagger or a knife, in the regular order of
things, does not imply any difference between such weapons. (Dec.
Sup. Ct. of Spain, Oct. 27, 1887)
This ruling is subject to the limitations mentioned in the case
of People vs. Padua, supra, namely: (1) there was no other available
Par. 1
means; or (2) if there was other means, the one making a defense
could not coolly choose the less deadly weapon to repel the
aggression.
c. But when a person is attacked with fist blows, he must repel the
same with the weapon that nature gave him, meaning with fists
also. (People vs. Montalbo, 56 Phil.
443)
This ruling applies only when the aggressor and the one
defending himself are of the same size and strength.
2. Physical condition, character and size.

a. Thus, when the one defending himself who was of middle age, was
cornered, had his back to the iron railing, and three or four men
bigger, and stronger than he were striking him with fists, such
person was
justified in using a knife. (People vs. Ignacio, 58 Phil.
858)
b. The aggressor was a bully, a man larger and stronger, of known
violent character, with previous criminal records for assault. He
attacked with fist blows a smaller man who was then armed with a
bolo. In spite of having received, as a warning, a cut with a bolo on
the left shoulder, the aggressor continued to attempt to possess
himself of the bolo. Killing him with a bolo was justified in this case.
(People vs. Sumicad,
56 Phil. 643)
c. The character of the aggressor is emphasized in this case:
Considering that the aggressor provoked the incident
and started the aggression; considering that he is of violent
temperament, troublesome, strong and aggressive with three
criminal records, twice of
slander by deed and once of threat to kill; considering that he
wanted to impose his will on the family of the accused for
having rejected his nephew as a suitor of the sister of the
accused, boxing them one after another and in their own home
— the Court of Appeals held that the accused was justified in
striking him with a bolo on the forehead and on the right eye.
(People vs. Padua, C.A., 40 O.G. 998)
3. Other circumstances considered.

In view of the imminence of the danger, a shotgun is a
reasonable means to prevent an aggression with a bolo.
183
Par. 1 Self-Defense
M, being abruptly awakened by shouts that P was pursuing
H and M's two children, and seeing, upon awakening, that in fact P
was infuriated and pursuing H with a bolo in his hand and his arm
raised in an attitude as if to strike, took up a shotgun lying within
his reach and fired at P, killing him at once. Held: Under the
circumstances, in view of the imminence of the danger, the only
remedy which could be considered reasonably necessary to repel or
prevent that aggression, was to render the aggressor harmless. As
M had on hand a loaded shotgun, this weapon was the most
appropriate one that could be used for the purpose, even at the risk
of killing the aggressor, since the latter's aggression also gravely
threatened the lives of the parties assaulted. (U.S. vs. Batungbacal,
37 Phil. 382, 387-388)
Reasonable necessity of means employed to prevent or

repel unlawful aggression to be liberally construed in favor
of lawabiding citizens.
These are dangerous times. There are many lawless elements who kill
for the thrill of killing. There is no adequate protection for the law abiding
citizens. When a lawless person attacks on the streets or particularly in the
victim's home, he should assume the risk of losing his life from the act of self-
defense by firearm of his victim; otherwise, the law abiding citizens will be at
the mercy of the lawless elements. Hence, the requisite of reasonable necessity
of the means employed to prevent or repel the unlawful aggression should in
these times of danger be interpreted liberally in favor of the law-abiding
citizens. (People vs. So, 5 CAR [2s] 671, 674)
Rule regarding the reasonableness of the "necessity of the

means employed" when the one defending himself is a
peace officer.
The peace officer, in the performance of his duty, represents the law
which he must uphold. While the law on self-defense allows a private individual
to prevent or repel an aggression, the duty of a peace officer requires him to
overcome his opponent.
Thus, the fact that a policeman, who was armed with a revolver and a
club, might have used his club instead, does not alter the principle since a
policeman's club is not a very effective weapon as against a drawn knife and a
police officer is not required to afford a person attacking him, the opportunity for
a fair and equal struggle. (U.S. vs. Mojica, 42 Phil. 784, 787)
But in the case of U.S. vs. Mendoza, 2 Phil. 109,110, it was held that it is
not reasonably necessary for a policeman to kill his assailant to repel an attack
with a calicut.
184
Par. 1
The use by a police officer of his service revolver in repelling the
aggression of the deceased who assaulted him with a kitchen knife and
continued to give him thrusts in the confines of a small room measuring 6 feet
by 6 feet is reasonable and necessary. Considering the imminent danger to
which his life was exposed at the time, he could hardly be expected to choose
coolly, as he would under normal conditions, the use of his club as a less
deadly weapon to use against his assailant. As a police officer in the lawful
performance of his official duty, he must stand his ground and cannot, like a
private individual, take refuge in flight. His duty requires him to overcome his
opponent. (People vs. Caina, 14 CAR [2s] 93, 99-100)
There is no evidence that the accused was also armed with a weapon less
deadly than a pistol. But even if he had a club with him, the pistol would still
be a reasonable means to repel the aggression of the deceased, for a police
officer is not required to afford a person attacking him with a drawn knife the
opportunity for a fair and equal struggle. While the law on self-defense allows
a private individual to prevent or repel an aggression, the duty of a peace
officer requires him to overcome his opponent. The peace officer, in the
performance of his duty, represents the law which he must uphold. (People vs.
Uy, Jr., 20 CAR [2s] 850, 859-860)
First two requisites common to three kinds of legitimate

defense.
The first two requisites thus far explained are common to selfdefense,
defense of a relative, and defense of a stranger. These three kinds of legitimate
defense differ only in the third requisite.
Third requisite of self-defense.

"Lack of sufficient provocation on the part of the person defending
himself."
Reason for the third requisite of self-defense.

When the person defending himself from the attack by another gave
sufficient provocation to the latter, the former is also to be blamed for having
given cause for the aggression.
Hence, to be entitled to the benefit of the justifying circumstance of self-
defense, the one defending himself must not have given cause for the
aggression by his unjust conduct or by inciting or provoking the assailant.
Cases in which third requisite of self-defense considered

present.
The third requisite of self-defense is present —
185
Par. 1 Self-Defense
1. When no provocation at all was given to the aggressor by the
person defending himself; or
2. When, even if a provocation was given, it was not sufficient; or
3. When, even if the provocation was sufficient, it was not given by
the person defending himself; or
4. When, even if a provocation was given by the person defending
himself, it was not proximate and immediate to the act of
aggression. (Decisions of the Supreme Court of Spain of March 5,
1902 and of April 20, 1906) No provocation at all.
Thus, when A shot B to death, because B was running amuck and with a
dagger was rushing towards A manifestly intending to stab A, there was no
provocation whatsoever on the part of A. The
third requisite of self-defense is present.
There was provocation, but not sufficient.

A, having discovered that B had built a part of his fence on A's land,
asked B why he had done so. This question angered B who immediately
attacked A. If A would kill B to defend himself, the third requisite of self-
defense would still be present, because even if it is true that the question of A
angered B, thereby making B attack
A, such provocation is not sufficient. (U.S. vs. Pascua, 28 Phil. 222)
A had a right to demand explanation why B had built the fence on A's
property. The exercise of a right cannot give rise to sufficient provocation.
How to determine the sufficiency of provocation.

The provocation must be sufficient, which means that it should be
proportionate to the act of aggression and adequate to stir the aggressor to its
commission. (People vs. Alconga, 78 Phil. 366)
Thus, to engage in a verbal argument cannot be considered sufficient
provocation. (Decision of the Supreme Court of Spain of
October 5, 1877)
Is it necessary for the provocation to be sufficient that the one who gave
it must have been guilty of using violence and thus becoming an unlawful
aggressor himself?
No, it is not necessary.
The provocation is sufficient —
1. When one challenges the deceased to come out of the house and
engage in a fist-fight with him and prove who is the better man.
(U.S. vs. McCray, 2 Phil. 545)
186
Par. 1
The version of the defense deserves no credit. Accused father
and son challenged the deceased to fight and they killed him when
he came out. One of the first requisites of self-defense is unlawful
aggression. Accused father called out the deceased from his house
and provoked him to fight. Coming out, said accused threw a stone
at him. The deceased merely fought back but together both
accused assaulted him until he fell wounded. (People vs. Valencia,
No. L-58426, Oct. 31,
1984, 133 SCRA 82, 86-87)
2. When one hurls insults or imputes to another the utterance of

vulgar language, as when the accused and his brothers imputed to
the deceased, the utterance of vulgar language against them, which
imputation provoked the deceased to attack them. (People vs.
Sotelo, 55 Phil. 403)
But it is not enough that the provocative act be unreasonable
or annoying. A petty question of pride does not justify the
wounding or killing of an opponent. (People vs. Dolfo, C.A., 46
O.G. 1621)
3. When the accused tried to forcibly kiss the sister of the deceased.
The accused thereby gave sufficient provocation to the deceased to
attack him. There is no complete selfdefense, because the third
requisite is not present. (People vs. Getida, CA-G.R. No. 2181-R,
Jan. 6, 1951)
Sufficient provocation not given by the person defending

himself.
Note the phrase "on the part of the person defending himself" in the
third requisite of self-defense. Thus, in the case of People vs. Balansag, 60 Phil.
266, it was held that the third requisite of selfdefense was present, because the
provocation proven at the trial was not given by the accused but by the
brother-in-law of the deceased.
Requisite of "lack of sufficient provocation" refers

exclusively to "the person defending himself."
Thus, if the accused appears to be the aggressor, it cannot be said that he
was defending himself from the effect of another's aggression.
(People vs. Espino, 43 O.G. 4705)
In the case of People vs. Alconga, 78 Phil. 366, the attack made by the
deceased when Alconga was the one defending himself during the first stage of
the fight, was not considered as a provocation to Alconga in the second stage of
the fight, because then he was the aggressor and
187
Par. 1 Self-Defense
the third requisite of self-defense is limited to the person defending himself.
Provocation by the person defending himself not

proximate and immediate to the aggression.
Thus, if A slapped the face of B one or two days before and
B, upon meeting A, attacked the latter but was seriously injured when A
defended himself, the provocation given by A should be disregarded, because
it was not proximate and immediate to the ag-
gression made by B. In this case, the third requisite of self-defense is still
present.
In the case of U.S. vs. Laurel, supra, the kissing of the girlfriend of the
aggressor was a sufficient provocation to the latter, but since the kissing of the
girl took place on December 26 and the aggression was made on December 28,
the provocation was disregarded by the Supreme Court.
Illustration of the three requisites of self-defense.
People vs. Dolfo

(C.A., 46 O.G. 1621)
A was an electrician while B was his assistant. A called B to him, who

instead of approaching asked him, "Why are you calling me?" A considered the
retort as a provocative answer and suddenly threw a 4 by 2 inches piece of wood
at B. B retaliated by throwing at A the same piece of wood. A picked up the piece
of wood, approached B and started to beat him with the piece of wood. B
defended himself with a screwdriver and inflicted a mortal wound on A.
Question: (1) Was there sufficient provocation on the part of B when he
retorted "Why are you calling me?" (2) Was there reasonable necessity in using
the screwdriver to repel the attack?
Answer: (1) B's answer of "Why are you calling me?" when summoned by
A might have mortified and annoyed the latter but it was not a sufficient
provocation. The provocation must be sufficient or proportionate to the act
committed and adequate to arouse one to its commission. It is not sufficient
that the provocative act be unreasonable
188
Self-Defense Par. 1
or annoying. A small question of self-pride does not justify hurting or
killing an opponent.
(2) The act of A in hurling the piece of wood at B when his pride was
hurt constituted unlawful aggression. Subsequent act of A in attacking B with the
piece of wood, after B had hurled back the thrown piece of wood, was a
continuation of the unlawful aggression already begun. The subsequent act of A
placed B in his defense, justifying the use of a reasonable means to repel it.
(3) In determining whether or not a particular means employed to repel

an aggression is reasonable, the person attacked should not be expected to judge
things calmly and to act coolly or serenely as one not under stress or not facing a
danger to life or limb. The test is: Considering the situation of the person
defending himself, would a reasonable man placed in the same circumstance have
acted in the same way? In this case, the screwdriver was a reasonable means to
repel the unlawful aggression of A. B was justified in killing him with it. All the
three requisites of self-defense were present. Hence, accused B must be, as he was,
acquitted.
All the elements of self-defense are present in this case.
(1) The deceased husband of the accused was kneeling over her as she
lay on her back on the ground and his hand choking her neck when she pulled out
the knife tucked on the left side of her husband's belt and plunged it at his body.
(2) A woman being strangled and choked by a furious aggressor and

rendered almost unconscious by the strong pressure on her throat, she had no
other recourse but to get hold of any weapon within her reach to save herself
from impending death. Reasonable necessity of the means employed in self-
defense does not depend upon the harm done but rests upon the imminent danger
of such injury.
(3) She did not give sufficient provocation to warrant the aggression or
attack on her person by her husband. While it was understandable for the latter
to be angry at his wife for finding her on the road in the middle of the night, he
was not justified in inflicting bodily punishment with an intent to kill by choking
his wife's throat. All that she did was to provoke an imaginary commission of a
wrong in the mind of her husband, which is not a sufficient provocation under the
law of self-defense. (People vs. Boholst-Caballero, No. L-23249, Nov.
25, 1974, 61 SCRA 180, 189, 195-196)
Battered Woman Syndrome as a defense.

Under Rep. Act No. 9262 otherwise known as Anti-Violence
Against Women and their Children Act of 2004, which took effect on
March 27, 2004, it is provided that -
"Sec. 26. Battered Women Syndrome as a Defense. — Victimsurvivors
who are found by the courts to be suffering from battered
189
Par. 1 Self-Defense
women syndrome do not incur criminal and civil liability notwithstanding the
absence of any of the elements for justifying circumstances of self-defense
under the Revised Penal Code.
In the determination of the state of mind of the woman who was
suffering from battered woman syndrome at the time of the commission of the
crime, the courts shall be assisted by expert psychiatrist/
psychiatrists/psychologists."
The Battered Woman Syndrome, explained.

In claiming self-defense, appellant raises the novel theory of the battered
woman syndrome (BWS). While new in Philippine jurisprudence, the concept
has been recognized in foreign jurisdictions as a form of self-defense or, at the
least, incomplete self-defense. By appreciating evidence that a victim or
defendant is afflicted with the syndrome, foreign courts convey their
"understanding of the justifiably fearful state of mind of a person who has
been cyclically abused and controlled over a period of time."
A battered woman has been defined as a woman "who is repeatedly
subjected to any forceful physical or psychological behavior by a man in order
to coerce her to do something he wants her to do without concern for her
rights. Battered women include wives or women in any form of intimate
relationship with men. Furthermore, in order to be classified as a battered
woman, the couple must go through the battering cycle at least twice. Any
woman may find herself in an abusive relationship with a man once. If it
occurs a second time, and she remains in the situation, she is defined as a
battered woman."
Battered women exhibit common personality traits, such as low self-
esteem, traditional beliefs about the home, the family and the female sex role;
emotional dependence upon the dominant male; the tendency to accept
responsibility for the batterer's actions; and false hopes that the relationship
will improve.
More graphically, the battered woman syndrome is characterized by the
so-called "cycle of violence," which has three phases: (1) the tension-building
phase; (2) the acute battering incident; and (3) the
Art. 11
Self-Defense Par. 1
tranquil, loving (or, at least, nonviolent) phase. During the tensionbuilding

phase, minor battering occurs — it could be verbal or slight physical abuse or
another form of hostile behavior. The woman usually tries to pacify the
batterer through a show of kind, nurturing behavior; or by simply staying out
190
of his way. What actually happens is that she allows herself to be abused in
ways that, to her, are comparatively minor. All she wants is to prevent the
escalation of the violence exhibited by the batterer. This wish, however, proves
to be doubleedged, because her "placatory" and passive behavior legitimizes
his belief that he has the right to abuse her in the first place.
However, the techniques adopted by the woman in her effort to placate
him are not usually successful, and the verbal and/or physical abuse worsens.
Each partner senses the imminent loss of control and the growing tension and
despair. Exhausted from the persistent stress, the battered woman soon
withdraws emotionally. But the more she becomes emotionally unavailable,
the more the batterer becomes angry, oppressive and abusive. Often, at some
unpredictable point, the violence "spirals out of control" and leads to an acute
battering incident.
The acute battering incident is said to be characterized by brutality,
destructiveness and, sometimes, death. The battered woman deems this
incident as unpredictable, yet also inevitable. During this phase, she has no
control; only the batterer may put an end to the violence. Its nature reasons
for ending it. The battered woman usually realizes that she cannot reason with
him, and that resistance would only exacerbate her condition.
At this stage, she has a sense of detachment from the attack and the
terrible pain, although she may later clearly remember every detail. Her
apparent passivity in the face of acute violence may be rationalized thus: the
batterer is almost always much stronger physically, and she knows from her
past painful experience that it is futile to fight back. Acute battering incidents
are often very savage and out of control, such that innocent bystanders of
intervenors are likely to get hurt.
The final phase of the cycle of violence begins when the acute battering
incident ends. During this tranquil period, the couple experience profound
relief. On the one hand, the batterer may show a tender and nurturing
behavior towards his partner. He knows that he has been viciously cruel and
tries to make up for it, begging for her forgiveness and promising never to
beat her again. On the other hand, the battered woman also tries to convince
herself that the battery will never happen again; that her partner will change
for the better; and that this "good, gentle and caring man" is the real person
whom she loves.
A battered woman usually believes that she is the sole anchor of the
emotional stability of the batterer. Sensing his isolation and despair, she feels
responsible for his well-being.
The truth, though, is that the chances of his reforming, or seeking or
receiving professional help, are very slim, especially if she remains with him.
Generally, only after she leaves him does he seek professional help as a way of
191
Par. 1 Self-Defense
getting her back. Yet, it is in this phase of remorseful reconciliation that she is
most thoroughly tormented psychologically.
The illusion of absolute interdependency is well-entrenched in a battered
woman's psyche. In this phase, she and her batterer are indeed emotionally
dependent on each other—she for his nurturant behavior, he for her
forgiveness. Underneath this miserable cycle of "tension, violence and
foregiveness," each partner may believe that it is better to die than to be
separated. Neither one may really feel independent, capable of functioning
without the other." (People vs. Genosa, G.R. No. 135981, January 15, 2004.)
Effect of Battery on Appellant

Because of the recurring cycles of violence experienced by the abused
woman, her state of mind metamorphoses. In determining her state of mind,
we cannot rely merely on the judgment of an ordinary, reasonable person who
is evaluating the events immediately surrounding the incident. A Canadian
court has aptly pointed out that expert evidence on the psychological effect of
battering on wives and common law partners are both relevant and necessary.
"How can the mental state of the appellant be appreciated without it? The
average member of the public may ask: Why would a woman put up with this
kind of treatment? Why should she continue to live with such a man? How
could she love a partner who beat her to the point of requiring
hospitalization? We would expect the woman to pack her bags and go. Where
is her self-respect? Why does she not cut loose and make a new life for herself?
Such is the reaction of the average person confronted with the so-called
'battered wife syndrome.'"
To understand the syndrome properly, however, one's viewpoint should
not be drawn from that of an ordinary, reasonable person. What
Art. 11
Self-Defense Par. 1
goes on in the mind of a person who has been subjected to repeated, severe
beating may not be consistent with—nay, comprehensible to— those who have
not been through a similar experience. Expert opinion is essential to clarify
and refute common myths and misconceptions about battered women.
The theory of BWS formulated by Lenore Walker, as well as her
research on domestic violence, has had a significant impact in the United
States and the United Kingdom on the treatment and prosecution of cases, in
which a battered woman is charged with the killing of her violent partner. The
psychologist explains that the cyclical nature of the violence inflicted upon the
battered woman immobilizes the latter's "ability to act decisively in her own
interests, making her feel trapped in the relationship with no means of
192
escape." In her years of research, Dr. Walker found that "the abuse often
escalates at the point of separation and battered women are in greater danger
of dying then."
Corroborating these research findings, Dra. Dayan said that "the
battered woman usually has a very low opinion of herself. She has x x x self-
defeating and self-sacrificing characteristics, x x x [W]hen the violence would
happen, they usually think that they provokefd] it, that they were the one[s]
who precipitated the violence [; that] they provoke[d] their spouse to be
physically, verbally and even sexually abusive to them."
According to Dra. Dayan, there are a lot of reasons why a battered
woman does not readily leave an abusive partner — poverty, self-blame and
guilt arising from the latter's belief that she provoked the violence, that she
has an obligation to keep the family intact at all cost for the sake of their
children, and that she is the only hope for her spouse to change.
The testimony of another expert witness, Dr. Pajarillo, is also helpful.
He had previously testified in suits involving violent family relations, having
evaluated "probably ten to twenty thousand" violent family disputes within
the Armed Forces of the Philippines, wherein such cases abounded. As a result
of his experience with domestic violence cases, he became a consultant of the
Battered Woman Office in Quezon City. As such, he got involved in about
forty (40) cases of severe domestic violence, in which the physical abuse on the
woman would sometimes even lead to her loss of consciousness.
Dr. Pajarillo explained that "overwhelming brutality, trauma" could
result in post traumatic stress disorder, a from of "anxiety neurosis or
neurologic anxietism." After being repeatedly and severely
193
Par. 2 Defense of Relatives
abused, battered persons "may believe that they are essentially helpless,
lacking power to change their situation, x x x [A]cute battering incidents can
have the effect of stimulating the development of coping responses to the
trauma at the expense of the victim's ability to muster an active response to
try to escape further trauma. Furthermore, x x x the victim ceases to believe
that anything she can do will have a predictable positive effect."
A study conducted by Martin Seligman, a psychologist at the
University of Pennsylvania, found that "even if a person has control over a
situation, but believes that she does not, she will be more likely to respond to
that situation with coping responses rather than trying to escape." He said
that it was the cognitive aspect—the individual's thoughts—that proved all-
important. He referred to this phenomenon as—"learned helplessness." [T]he
truth or facts of a situation turn out to be less important than the individual's
set of beliefs or perceptions concerning the situation. Battered women don't
attempt to leave the battering situation, even when it may seem to outsiders
that escape is possible, because they cannot predict their own safety; they
believe that nothing they or anyone else does will alter their terrible
circumstances."
Thus, just as the battered woman believes that she is somehow
responsible for the violent behavior of her partner, she also believes that he is
capable of killing her, and that there is no escape. Battered women feel unsafe,
suffer from pervasive anxiety, and usually fail to leave the relationship. Unless
a shelter is available, she stays with her husband, not only because she
typically lacks a means of self-support, but also because she fears that if she
leaves she would be found and hurt even more. (People vs. Genosa, G.R. No.
135981, January 15, 2001).
Flight, incompatible with self-defense.

The appellant went into hiding after the hacking incident. Suffice it to
state that flight after the commission of the crime is highly evidentiary of guilt,
and incompatible with self-defense (People vs. Maranan, G.R. No. L-47228-32,
citing People vs. Maruhom, 132 SCRA 116).
Par. 2 - DEFENSE OF RELATIVES.

Anyone who acts in defense of the person or rights of his spouse,
ascendants, descendants, or legitimate, natural or adopted brothers or
sisters, or of his relatives by affinity in the same degrees, and those by Art.
11
Defense of Relatives Par. 2
194
consanguinity within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding circumstance are
present, and the further requisite, in case the provocation was given by the
person attacked, that the one making defense had no part therein.
Relatives that can be defended.

1. Spouse.
2. Ascendants.
3. Descendants.
4. Legitimate, natural or adopted brothers and sisters, or relatives
by affinity in the same degrees.
5. Relatives by consanguinity within the fourth civil degree.

Relatives by affinity, because of marriage, are parents-in-law, son or
daughter-in-law, and brother or sister-in-law.
Death of the spouse terminates the relationship by affinity (Kelly
v. Neely, 12 Ark. 667, 659, 56 AmD 288; Chase vs. Jennings, 38 Me. 44,45);
unless the marriage has resulted in issue who is still living, in which case the
relationship of affinity continues. (Dearmond vs. Dearmond, 10 Ind. 191;
Bigelow vs. Sprague, 140 Mass. 425, 5 NE 144)
Consanguinity refers to blood relatives. Brothers and sisters are within
the second civil degree; uncle and niece or aunt and nephew are within the
third civil degree; and first cousins are within the fourth civil degree.
Thus, if A acted in defense of the husband of A's sister-in-law, there is
no defense of relative, because the relation between A and the husband of A's
sister-in-law is not one of those mentioned in paragraph 2 of Article 11.
(People vs. Cabellon, 51 Phil. 846) The husband of A's sister-in-law is a
stranger to A for purpose of the law on defense of relatives.
Basis of justification.
The justification of defense of relatives by reason of which the defender
is not criminally liable, is founded not only upon a humanitarian sentiment, but
also upon the impulse of blood which impels
men to rush, on the occasion of great perils, to the rescue of those close to
them by ties of blood. (Albert)
Requisites of defense of relatives:
1. Unlawful aggression;
195
2. Reasonable necessity of the means employed to prevent or repel
it; and
3. In case the provocation was given by the person attacked, the one
making a defense had no part therein. (See People vs. Eduarte,
G.R. No. 72976, July 9, 1990, 187 SCRA 291, 295; People vs.
Agapinay, G.R. No. 77776, June 27, 1990,
186 SCRA 812, 823)
First two requisites are the same as those of self-defense.

The meaning of "unlawful aggression" and that of "reasonable necessity
of the means employed to prevent or repel it" are already explained in the
discussion of self-defense.
Defense of relatives also requires that there be unlawful

aggression.
Of the three requisites of defense of relatives, unlawful aggression is the
most essential and primary, without which any defense is not possible or
justified. (People vs. Agapinay, supra)
Of the three (3) requisites of defense of relatives, unlawful aggression is
a condition sine qua non, for without it any defense is not possible or justified.
In order to consider that an unlawful aggression was actually committed, it is
necessary that an attack or material aggression, an offensive act positively
determining the intent of the aggressor to cause an injury shall have been
made; a mere threatening or intimidating attitude is not sufficient to justify
the commission of an act which is punishable per se, and allow a claim of
exemption from liability on the ground that it was committed in self-defense
or defense of a relative. (Balunueco vs. Court of Appeals, G.R. No. 126968,
April 9, 2003)
When two persons are getting ready to strike each other, there can be no
unlawful aggression, and hence, a relative of either who butts in and
administers a deadly blow on the other to prevent him from doing harm is not
acting in defense of a relative, but is guilty of homicide. (People vs. Moro
Munabe, C.A., 46
O.G. 4392)
Art. 11
Defense of Relatives Par. 2
In this case, when he saw the deceased and his brother facing each other
in a fight, each holding a taki taki, an instrument for uprooting rubber
196
seedlings, the accused hit the deceased on the head with his taki taki, causing
the latter's death.
If the accused appears to be the aggressor, he cannot invoke the defense
of having acted in defense of a relative. (People vs. Panuril,
C.A., 40 O.G. 1477)
Must unlawful aggression exist as a matter of fact, or can

it be made to depend upon the honest belief of the one
making
a defense?
Yes, it can be made to depend upon the honest belief of the one making a
defense. (U.S. vs. Esmedia, 17 Phil. 260, 264)
Thus, when A attacked and wounded B with a dagger, causing the latter
to fall down, but B immediately stood up and defended himself by striking A
with a bolo and as a result, A was seriously wounded and fell in the mud with
B standing in front of A in a position as if to strike again in case A would stand
up, there is no doubt that A was the unlawful aggressor. But when the sons of
A came, what they saw was that their father was lying in the mud wounded.
They believed in good faith that their father was the victim of an unlawful
aggression. If they killed B under such circumstances, they are justified.
In that case, there was a mistake of fact on the part of the sons of A.
Even in self-defense, the Supreme Court of Spain held that when a
person while walking at night in an uninhabited place was ordered by
someone to halt and give his money, such person was justified in shooting that
someone, even if he turned out to be a friend, only playing a practical joke.
Gauge of reasonable necessity of the means employed to repel the aggression.

The gauge of reasonable necessity of the means employed to repel the
aggression as against one's self or in defense of a relative is to be found in the
situation as it appears to the person repelling the aggression. It has been held
time and again that the reasonableness of the means adopted is not one of
mathematical calculation or "material commensurability between the means
of attack and defense" but the imminent danger against the subject of the
attack as perceived by the defender and the instinct more than reason that
moves the defender to repel the attack. (Eslabon vs. People, No. L-66202,
Feb.
24, 1984, 127 SCRA 785, 790-791)
Third requisite of defense of relative.
197
The clause, "in case the provocation was given by the person attacked,"
used in stating the third requisite of defense of relatives, does not mean that
the relative defended should give provocation to the aggressor. The clause
merely states an event which may or may not take place.
The phrase "in case" means "in the event that."
There is still a legitimate defense of relative even if the relative being
defended has given provocation, provided that the one defending such relative
has no part in the provocation.
Reason for the rule:

That although the provocation prejudices the person who gave it, its
effects do not reach the defender who took no part therein, because the latter
was prompted by some noble or generous sentiment in protecting and saving a
relative.
When the third requisite is lacking.

The accused was previously shot by the brother of the victim. It cannot
be said, therefore, that in attacking the victim, the accused was impelled by
pure compassion or beneficence or the lawful desire to avenge the immediate
wrong inflicted on his cousin. Rather, he was motivated by revenge,
resentment or evil motive because of a running feud between them. (People vs.
Toring, G.R. No. 56358, Oct. 26, 1990, 191 SCRA 38, 47)
The fact that the relative defended gave provocation is

immaterial.
Thus, even if A had slapped the face of B who, as a consequence of the
act of A, immediately commenced to retaliate by drawing a
Art. 11
Defense of Stranger Par. 3
knife and trying to stab A, and C, father of A, killed B in defense of his son, C
is completely justified, notwithstanding the fact that the provocation was given
by his son A.
But if C had induced his son A to injure B, thereby taking part in the
provocation made by A, C would not be completely justified in killing B while
the latter was about to stab A, because the third requisite of defense of relative
is lacking.
198
Suppose, the person defending his relative was also induced by revenge
or hatred, would there be a legitimate defense of relative? As long as the three
requisites of defense of relatives are present, it will still be a legitimate defense.
Examples of defense of relatives.

1. The accused, at a distance of about 20 "brazas" from his house, heard
his wife shouting for help. He rushed to the house and once inside saw
the deceased on top of his wife. He drew his bolo and hacked the
deceased at the base of his neck when the latter was forcibly abusing his
wife. (People vs. Ammalun, C.A., 51 O.G. 6250)
2. Domingo Rivera challenged the deceased to prove who of them was the
better man. When the deceased picked up a bolo and went after him,
Domingo Rivera took to flight. The deceased pursued him and upon
overtaking him inflicted two wounds. Antonio Rivera, father of
Domingo, rushed to his son's assistance and struck with a cane the bolo
from the hands of the deceased. Domingo Rivera inflicted fatal wounds
upon the deceased. While the son was originally at fault for giving
provocation to the deceased, yet the father was justified in disarming the
deceased, having acted in lawful defense of his son. But Domingo Rivera
was declared guilty of the crime of homicide. (U.S. vs. Rivera, 26 Phil.
138)
Par. 3 - DEFENSE OF STRANGER.

Anyone who acts in defense of the person or rights of a stranger,
provided that the first and second requisites mentioned in the first
circumstance of this article are present and that the person defending be
not induced by revenge, resentment, or other evil motive.
199
Art. 11
Par. 3 Defense of Stranger
Requisites:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to prevent or repel
it; and
3. The person defending be not induced by revenge, resentment, or
other evil motive. (See People vs. Moral, No. L-31139, Oct. 12,
1984, 132 SCRA 474, 485)
Note that the first two requisites are the same as those of selfdefense and
defense of relatives.
Basis of defense of stranger.

What one may do in his defense, another may do for him. Persons acting
in defense of others are in the same condition and upon the same plane as
those who act in defense of themselves. The ordinary man would not stand idly
by and see his companion killed without attempting to save his life. (U.S. vs.
Aviado, 38 Phil. 10, 13)
Third requisite of defense of stranger.

This Code requires that the defense of a stranger be actuated by a
disinterested or generous motive, when it puts down "revenge, resentment, or
other evil motive" as illegitimate. (Albert)
Who are deemed strangers?

Any person not included in the enumeration of relatives mentioned in
paragraph 2 of this article, is considered stranger for the purpose of paragraph
3. Hence, even a close friend or a distant relative is a stranger within the
meaning of paragraph 3.
The person defending "be not induced."

Paragraph 3 of Art. 11 uses the phrase "be not induced." Hence, even if
a person has a standing grudge against the assailant, if he enters upon the
defense of a stranger out of generous motive to save the stranger from serious
bodily harm or possible death, the third requisite of defense of stranger still
exists. The third requisite would be lacking if such person was prompted by his
grudge against the assailant, because the alleged defense of the stranger would
be only a pretext.
200
Avoidance of Greater Evil or Injury Par. 4
If in defending his wife's brother-in-law, the accused acted also from an

impulse of resentment against the deceased, the third req-
uisite of defense of stranger is not present. (People vs. Cabellon and Gaviola,
51 Phil. 851)
Examples of defense of stranger:

1. A was able to deprive B, a constabulary lieutenant, of his pistol during
the fray. B ordered C, a constabulary soldier under his command, to
search A for the pistol. When C was about to approach A to search him,
the latter stepped back and shot at C who was able to avoid the shot.
When A was about to fire again at C, D, another constabulary soldier,
fired at A with his rifle which killed him.
Held: D was justified in killing A, having acted in defense of stranger.

(People vs. Ancheta, et al., 66 Phil. 638)
2. A heard screams and cries for help. When A responded, he saw B
attacking his (B's) wife with a dagger. A approached B and struggled for
the possession of the weapon, in the course of which A inflicted wounds
on B.
Held: A acted in defense of a stranger. (People vs. Valdez, 58 Phil. 31)
Furnishing a weapon to one in serious danger of being throttled is defense of

stranger.
A Japanese hit an old man 78 years of age on the face, shoved him to the
ground and attempted to choke him. The accused furnished the old man with
a small gaff, used by game cocks, with which the old man killed his assailant.
The accused was justified in furnishing the old man with the gaff, it being in
defense of stranger. (U.S. vs. Subingsubing, 31 Phil. 376)
Par. 4 - AVOIDANCE OF GREATER EVIL OR INJURY.

Any person who, in order to avoid an evil or injury, does an act
which causes damage to another, provided that the following
requisites are present:
First. That the evil sought to be avoided actually exists;
Second. That the injury feared be greater than that done to avoid it;
Par. 4 Avoidance of Greater Evil or Injury
201
Third. That there be no other practical and less harmful means of

preventing it.
"Damage to another."
This term covers injury to persons and damage to property.
The Court of Appeals applied paragraph 4 of Art. 11 in a case of slander
by deed, a crime against honor, where the accused (a woman) who was about
to be married to the offended party eloped with another man, after the
offended partly had made preparations for the wedding, the Court holding
that there was a necessity on the part of the accused of avoiding a loveless
marriage with the offended party, and that her refusal to marry him and her
eloping with the
man whom she loved were justified and did not amount to the crime of slander
by deed. (People vs. Norma Hernandez, C.A., 55 O.G. 8465)
"That the evil sought to be avoided actually exists."

The evil must actually exist. If the evil sought to be avoided is merely
expected or anticipated or may happen in the future, paragraph 4 of Art. 11 is
not applicable.
Example of injury to person under paragraph 4:

A person was driving his car on a narrow road with due diligence and
care when suddenly he saw a "six by six" truck in front of his car. If he would
swerve his car to the left he would fall into a precipice, or if he would swerve it
to the right he would kill a passer-by. He was forced to choose between losing
his life in the precipice or sacrificing the life of the innocent bystander. He
chose the latter, swerved his car to the right, ran over and killed the passer-by.
(Guevara)
In view of this example and the principle involved, the killing of the
foetus to save the life of the mother may be held excusable.
"That the injury feared be greater than that done to avoid it."
Does the foregoing example violate the second condition required by the
Code, that is, that the injury feared be greater than that done to avoid it?
No, because the instinct of self-preservation will always make one feel
that his own safety is of greater importance than that of another.
202
Avoidance of Greater Evil or Injury Par. 4
The greater evil should not be brought about by the negligence or imprudence of
the actor.
Thus, if in the example above, the driver drove his car at full speed,
disregarding the condition of the place, and although he saw the "six by six"
truck at a distance 500 meters away, he did not slacken his speed, he cannot
invoke paragraph 4 of this article, because the state of necessity was brought
about by his own reckless imprudence.
When the accused was not avoiding any evil, he cannot invoke the
justifying circumstance of avoidance of a greater evil or injury.
Pio with a bolo and Severo with an axe attacked Geminiano who was
wounded. Nearby, Juan embraced Marianito, Geminiano's son, who had a gun
slung on his shoulder, and grappled with him. Geminiano died. Pio, Severo
and Juan were prosecuted for murder.
Juan invoked the justifying circumstance of avoidance of a greater evil or
injury (Par. 4, Article 11, R.P.C.) in explaining his act of preventing Marianito
from shooting Pio and Severo.
Held: His reliance on that justifying circumstance is erroneous.
The act of Juan Padernal in preventing Marianito de Leon from shooting
Ricohermoso and Severo Padernal, who were the aggressors, was designed to
insure the killing of Geminiano de Leon without any risk to his assailants.
Juan Padernal was not avoiding any evil when he sought to disable Marianito.
(People vs. Ricohermoso, et al., 56
SCRA 431)
Note: Even if Marianito was about to shoot Pio and Severo, his act,
being in defense of his father, is not an evil that could
justifiably be avoided by disabling Marianito.
Examples of damage to property under paragraph 4:

1. Fire breaks out in a cluster of nipa houses, and in order to prevent its
spread to adjacent houses of strong materials, the surrounding nipa
houses are pulled down. (Albert)
2. Where a truck of the Standard Vacuum Oil Co. delivering gasoline at a
gas station caught fire and, in order to prevent the burning of the
station, the truck was driven to the middle of the street and there
abandoned, but it continued to move and thereafter crashed against
and burned a house on the other side of the street, the owner of the
203
Par. 5 Fulfillment of Duty or Lawful
Exercise of Right or Office
house had a cause of action against the owner of the gas station under
paragraph 2 of Art. 101, in relation to paragraph 4 of Art. 11. (Tan vs.
Standard Vacuum Oil Co., 91 Phil. 672)
3. During the storm, the ship which was heavily loaded with goods was in
danger of sinking. The captain of the vessel ordered part of the goods
thrown overboard. In this case, the captain is not criminally liable for
causing part of the goods thrown overboard.
The evil which brought about the greater evil must not result from a violation of
law by the actor.
Thus, an escaped convict who has to steal clothes in order to move about
unrecognized, does not act from necessity. (Albert) He is liable for theft of the
clothes.
There is civil liability under this paragraph.

Although, as a rule there is no civil liability in justifying circumstances,
it is only in paragraph 4 of Art. 11 where there is civil liability, but the civil
liability is borne by the persons benefited.
In cases falling within subdivision 4 of Article 11, the persons for whose
benefit the harm has been prevented, shall be civilly liable in proportion to the
benefit which they may have received. (Art. 101)
Par. 5. - FULFILLMENT OF DUTY OR LAWFUL EXERCISE OF

RIGHT OR OFFICE.
Any person who acts in the fulfillment of a duty or in the lawful exercise of
a right or office.
Requisites:
1. That the accused acted in the performance of a duty or in the
lawful exercise of a right or office;
2. That the injury caused or the offense committed be the necessary
consequence of the due performance of duty or the lawful exercise
of such right or office. (People vs. Oanis, 74 Phil. 257, 259; People
vs. Pajenado, No. L-26458, Jan.
30, 1976, 69 SCRA 172, 177)
In the case of People vs. Oanis, supra, the first requisite is present,
because the accused peace officers, who were trying to get a wanted criminal,
were acting in the performance of a duty.
204
Fulfillment of Duty or Lawful Par. 5
The second requisite is not present, because through impatience, over-
anxiety, or in their desire to take no chances, the accused exceeded in the
fulfillment of their duty when they killed a sleeping person whom they believed
to be the wanted criminal without making any previous inquiry as to his
identity.
Fulfillment of duty.
People vs. Felipe Delima
(46 Phil. 738)
Facts: Lorenzo Napilon escaped from the jail where he was serving
sentence.
Some days afterwards the policeman, Felipe Delima, who was
looking for him, found him in the house of Jorge Alegria, armed with a
pointed piece of bamboo in the shape of a lance, and demanded his
surrender. The fugitive answered with a stroke of his lance. The
policeman dodged it, and to impose his authority fired his revolver, but
the bullet did not hit him. The criminal ran away, without parting with
his weapon. The peace officer went after him and fired again his
revolver, this time hitting and killing him.
The policeman was tried and convicted by the Court of First
Instance of homicide and sentenced to reclusion temporal and the
accessory penalties.
Held: The killing was done in the performance of a duty. The
deceased was under the obligation to surrender, and had no right, after
evading service of his sentence, to commit assault and disobedience with
a weapon in his hand, which compelled the policeman to resort to such
an extreme means, which, although it proved to be fatal, was
justified by the circumstances.
Article 8, No. 11 of the Penal Code (Art. 11, par. 5, Revised Penal
Code) being considered, Felipe Delima committed no crime, and he is
hereby acquitted with costs de oficio.
Ruling in Delima case, applied to the case of a guard who killed a detained
prisoner while escaping.
If a detained prisoner under the custody of the accused, a policeman
detailed to guard him, by means of force and violence, was able to leave the
cell and actually attempted to escape, notwithstanding the warnings given by
the accused not to do so, and was shot by the accused, the latter is entitled to
205
acquittal in accordance with the ruling laid down in People vs. Delima, 46
Phil. 738. (People vs. Bisa, C.A., 51 O.G. 4091)
Ruling in the Delima case, applied to a case where an

escaping detainee charged with a relatively minor offense
of stealing a chicken was shot to death by a policeman.
In this case, four members of the police force went after him as soon as
the detention prisoner had escaped. When the escaping detainee saw one of the
policemen, he lunged at the latter, hitting him with a stone on the right cheek,
as a consequence of which he fell down, and while in that position on the
ground, he was again struck with a stone by the escaping detainee; thereafter,
the latter ran away pursued by the policeman and his companions; in the
course of the pursuit, the policeman fired a warning shot into the air, and as
the escaping detainee paid no heed to this, the policeman fired into the air four
times more and kept on pursuing him; as the latter was apparently widening
the distance between them, and fearing that he might finally be able to elude
arrest, the policeman fired directly at him while he was in the act of jumping
again into another part of the creek, the shot having hit him on the back.
(Valcorza vs. People, 30 SCRA 148-150)
People vs. Lagata

(83 Phil. 159)
Facts: When the guard called his order to assemble, one of the prisoners
was missing. So, he ordered the others to look for him. The other prisoners
scampered. The guard fired at two of the prisoners, wounding one (Abria) and
killing the other (Tipace). His reason was to prevent the attempt of the prisoners
to escape.
Held: As regards the shooting of Abria and Tipace, we are convinced that
the facts were as narrated by the witnesses for the prosecution. Abria was shot
when he was only three meters away from the guard and the defense has not even
shown that Abria attempted to escape. Tipace was also shot when he was about
four or five meters away from the guard. The latter's allegation that Tipace was
running,
— conveying the idea that said prisoner was in the act of escaping,
— appears to be inconsistent with his own testimony to the effect that
Tipace was running sidewise, with his face looking towards him (the
guard), and with the undisputed fact that Tipace was hit near one axilla,
the bullet coming out from the opposite shoulder. If Tipace's purpose
was to escape, the natural thing for him to do would have been to give
his back to the guard.
206
It is clear that the guard had absolutely no reason to fire at Tipace.
The guard could have fired at him in self-defense or if absolutely
necessary to avoid his escape.
Five Justices believed that the prisoner who was killed was not escaping.
The four Justices who dissented believed that the prisoner was escaping or
running away when he was shot by the guard. All the Justices agreed that a
guard is justified in shooting an escaping prisoner.
In the case of U.S. vs. Magno, et al., 8 Phil. 314, where the prisoner
attempted to escape, and the Constabulary soldiers, his custodians, shot him to
death in view of the fact that the prisoner, disregarding the warning of his
custodians, persisted in his attempt to escape, and there was no other remedy
but to fire at him in order to prevent him from getting away, it was held that
the Constabulary soldiers acted in the fulfillment of duty and, therefore, were
not criminally liable.
Shooting an offender who refused to surrender is justified.

In the case of People vs. Gayrama, 60 Phil. 796, where the accused, who
had slashed with a bolo the municipal president on his arm, ran away and
refused to be arrested, it was stated that if the chief of police had been armed
with a revolver and had used it against the accused, the act of the chief of
police under those circumstances would have been fully justified.
The reason for this is that it is the duty of peace officers to arrest
violators of the law not only when they are provided with the corresponding
warrant of arrest but also when they are not provided with said warrant if the
violation is committed in their own presence; and this duty extends even to
cases the purpose of which is merely to prevent a crime about to be
consummated. (U.S. vs. Bertucio, 1 Phil. 47; U.S. vs. Resaba, 1 Phil. 311; U.S.
vs. Vallejo, 11 Phil. 193; U.S.
vs. Santos, 36 Phil. 853)
But shooting a thief who refused to be arrested is not

justified.
A security guard accosted a thief who had stolen ore in the tunnel of a
mining company. The thief tried to flee. The security guard ordered him to
stop, but the latter disregarded the order. The security guard fired four shots
into the air with his carbine to scare the thief and to stop him. As the thief
continued to flee, saying that he would not stop even if he died, the security
207
guard fired a fifth shot directed at the leg of the thief, but the bullet hit him in
the lumbar region. The thief died.
Held: The security guard acted in the performance of his duty, but he
exceeded the fulfillment of his duty by shooting the deceased. He was adjudged
guilty of homicide. (People vs. Bentres, C.A., 49
O.G. 4919)
In the case of People vs. Oanis, supra, it was held that although an officer
in making a lawful arrest is justified in using such force as is reasonably
necessary to secure and detain the offender, overcome his resistance, prevent
his escape, recapture him if he escapes, and protect himself from bodily harm,
yet he is never justified in using unnecessary force or in treating him with
wanton violence, or in resorting to dangerous means when the arrest could be
effected otherwise. (6 C.J.S., par. 13, p. 612) The doctrine is restated in the
Rules of Court thus: "No violence or unnecessary force shall be used in
making an arrest, and the person arrested shall not be subject to any greater
restraint than is necessary for his detention." (Rule 113, Sec. 2, par. 2)
Legitimate performance of duty.

When the victim without apparent reason, but probably due to
drunkenness, fired his gun several times at the Alta Vista Club, the accused
and his partner had to intervene for they were with the NBI. They would have
been remiss in their duty if they did not. True, the deceased companion of the
accused shot the victim who died as a result. But it would be doing injustice to
a deceased agent of the law who cannot now defend himself to state that when
he approached the trouble making victim he had a preconceived notion to kill.
It must be presumed that he acted pursuant to law when he tried to discharge
his duty as an NBI agent and that the killing of the victim was justified under
the circumstances. The same is true for the accused. (People vs. Cabrera, No.
L-31178, Oct. 28, 1980, 100 SCRA 424, 431)
Illegal performance of duty.

The defense of fulfillment of a duty does not avail. The attitude adopted
by the deceased in putting his hands in his pocket is not sufficient to justify the
accused to shoot him. The deceased was unarmed and the accused could have
first warned him, as the latter was coming towards him, to stop where he was,
raise his hands, or do the things a policeman is trained to do, instead of
mercilessly shooting him upon a mere suspicion that the deceased was armed.
(People vs.
Tan, No. L-22697, Oct. 5, 1976, 73 SCRA 288, 292-293)
208
We find the requisites absent in the case at bar. Appellant was not in the
performance of his duties at the time of the shooting for the reason that the
girls he was attempting to arrest were not committing any act of prostitution in
his presence. If at all, the only person he was authorized to arrest during that
time was Roberto Reyes, who offered him the services of a prostitute, for acts
of vagrancy. Even then, the fatal injuries that the appellant caused the victim
were not a necessary consequence of appelant's performance of his duty as a
police officer. The record shows that appellant shot the victim not once but
twice after a heated confrontation ensued between them. His duty to arrest the
female suspects did not include any right to shoot the victim to death. (People
vs. Peralta, G.R. No. 128116, January 24, 2001)
Distinguished from self-defense and from consequence of

felonious act.
Fulfillment of duty to prevent the escape of a prisoner is different from
self-defense, because they are based on different principles.
In the case of People us. Delima, supra, the prisoner who attacked the
policeman with "a stroke of his lance" was already running away when he was
shot, and, hence, the unlawful aggression had already ceased to exist; but the
killing was done in the performance of a duty. The rule of self-defense does not
apply.
The public officer acting in the fulfillment of a duty may appear to be an
aggressor but his aggression is not unlawful, it being necessary to fulfill his
duty.
Thus, when the guard levelled his gun at the escaping prisoner and the
prisoner grabbed the muzzle of the gun and, in the struggle for the possession
of the gun, the guard jerked away the gun from the hold of the prisoner,
causing the latter to be thrown halfway around, and because of the force of
the pull, the guard's finger squeezed the trigger, causing it to fire, hitting and
killing the prisoner, the guard was acting in the fulfillment of duty. (People vs.
Bisa, C.A., 51 O.G.
4091)
In either case, if the accused were a private person, not in the
performance of a duty, the result would be different. In the first case, there
would be no self-defense because there is no unlawful aggression. In the second
case, the one pointing the gun at another would be committing a felony, (grave
threat under Art. 282)
For instance, A levelled his gun at B, threatening the latter with death. B
grabbed the muzzle of the gun and in the struggle for the possession of the gun,
209
A squeezed the trigger causing it to fire, hitting and killing B. In this case, A is
criminally liable under Art. 4, par. 1, in relation to Art. 282 and Art. 249.
Lawful exercise of right or office.

Of right.
Under the Civil Code (Art. 429), the owner or lawful possessor of a thing
has the right to exclude any person from the enjoyment and disposal thereof.
For this purpose, he may use such force as may
be reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property.
If in protecting his possession of the property he injured (not seriously)
the one trying to get it from him, he is justified under this paragraph.
Under this paragraph (lawful exercise of a right), it is not necessary that
there be unlawful aggression against the person charged with the protection of
the property. If there is unlawful aggression against the person charged with
the protection of the property, then paragraph 1 of Art. 11 applies, it being a
defense of right to property.
Doctrine of "self-help" under Art. 429, Civil Code, applied

in Criminal Law.
People vs. Depante

(C.A., 58 O.G. 926)
Facts: At about 9 o'clock in the morning of December 29, 1958, while
Mariano Depante was in a Chinese store, Paciencia Iquiran, his
querida, saw him holding a five-peso bill in his left hand. Mariano had
just bought a package of cigarettes and the five-peso bill he was holding
was part of the change he had just received from the storekeeper.
Paciencia, who was in a bad mood because Mariano had not given her
support for sometime, approached him and after uttering insulting
words, grabbed the five-peso bill from Mariano's hand. When he acted to
recover the same, she grabbed his shirt, tearing the same. Mariano gave
her fist blows on the forehead, on the right side of the head and on the
middle part of her left arm, knocking her down. He was able to regain
possession of the five-peso bill.
Was the act of Paciencia in grabbing the five-peso bill an actual or
threatened unlawful physical invasion or usurpation of Mariano
Depante's property? We find that it was. More than that, the act could be
210
attempted robbery. The fact that Paciencia was a querida and that
Mariano had not supported her for sometime was not an exempting or
justifying circumstance. Robbery can even be committed by a wife
against her husband. Only theft, swindling and malicious mishief cannot
be committed by a wife against her husband. (Art. 332, Revised
Penal Code)
Did Mariano use such force as was reasonably necessary to repel or
prevent the actual or threatened unlawful physical invasion or
usurpation of his property? On this point, we find that he cannot claim
full justification, for the three fist blows which rendered Paciencia
unconscious for sometime were not reasonable, considering the sex of the
complainant. Hence, appellant is criminally liable. However, his criminal
liability may be mitigated under Article 69 of the Revised Penal Code.
Held: The requisites mentioned in Art. 429, Civil Code, in relation
to Art. 11, paragraph 5, Revised Penal Code, to justify the act not being
all present, a penalty lower by one or two degrees than that prescribed
by law may be imposed.
The actual invasion of property may consist of a mere

disturbance of possession or of a real dispossession.
If it is mere disturbance of possession, force may be used against it at
any time as long as it continues, even beyond the prescriptive period for an
action of forcible entry. Thus, if a ditch is opened by Pedro in the land of Juan,
the latter may close it or cover it by force at any time.
If the invasion, however, consists of a real dispossession, force to regain
possession can be used only immediately after the dispos-
211
Par. 6 Obedience to an Order Issued for Some Lawful Purpose
session. Thus, if Juan, without the permission of Pedro, picks up a book
belonging to the latter and runs off with it, Pedro can pursue Juan and
recover the book by force.
If the property is immovable, there should be no delay in the use of force
to recover it; a delay, even if excusable, such as when due
to the ignorance of the dispossession, will bar the right to the use of force.
Once the usurper's possession has become firm by the lapse of
time, the lawful possessor must resort to the competent authority to recover
his property. (Tolentino's comment on Article 429 of the new Civil Code, Vol.
II, p. 54, citing 3-1 Ennecerrus, Kipp and Wolff 92-93)
Of right
The exercise of a statutory right to suspend installment payments under
Section 23 of P.D. 957 is a valid defense against the purported violations of
B.P. Big. 22 that petitioner is charged with. Petitioner's exercise of the right of
a buyer under Article 23 of P.D. No. 957 is a valid defense to the charges
against him. (Sycip vs. Court of Appeals, G.R. No. 125059, March 17, 2000)
Of office.
The executioner of the Bilibid Prison cannot be held liable for murder
for the execution performed by him because he was merely acting in the lawful
exercise of his office. (Guevara)
A surgeon who amputated the leg of a patient to save him from
gangrene is not liable for the crime of mutilation, because he was acting in the
lawful exercise of his office.
Par. 6. - OBEDIENCE TO AN ORDER ISSUED FOR SOME LAWFUL

PURPOSE.
Any person who acts in obedience to an order issued by a superior

for some lawful purpose.
Requisites:
1. That an order has been issued by a superior.
2. That such order must be for some lawful purpose.

Obedience to an Order Issued for Par. 6
212
Some Lawful Purpose
3. That the means used by the subordinate to carry out said order is
lawful.
Both the person who gives the order and the person who executes it,
must be acting within the limitations prescribed by law. (People vs. Wilson
and Dolores, 52 Phil. 919)
Example of absence of the third requisite.

The court ordered that the convict should be executed on a certain date.
The executioner put him to death on a day earlier than the date fixed by the
court.
The execution of the convict, although by virtue of a lawful order of the
court, was carried out against the provision of Art. 82. The executioner is
guilty of murder.
When the order is not for a lawful purpose, the

subordinate who obeyed it is criminally liable.
(1) One who prepared a falsified document with full knowledge of its falsity
is not excused even if he merely acted in obedience to the instruction of
his superior, because the instruction was not for a lawful purpose.
(People vs. Barroga, 54 Phil. 247)
(2) A soldier who, in obedience to the order of his sergeant, tortured to
death the deceased for bringing a kind of fish different from that he had
been asked to furnish a constabulary detachment, is criminally liable.
Obedience to an order of a superior is justified only when the order is
for some lawful purpose. The order to torture the deceased was illegal,
and the accused was not bound to obey it. (People vs. Margen, et al., 85
Phil. 839)
The subordinate is not liable for carrying out an illegal

order of his superior, if he is not aware of the illegality of
the order and he is not negligent.
When the accused acted upon orders of superior officers, which he, as
military subordinate, could not question, and obeyed the orders in good faith,
without being aware of their illegality, without any fault or negligence on his
part, he is not liable because he had no criminal intent and he was not
negligent. (People vs. Beronilla, 96 Phil. 566) II. Exempting circumstances.
1. Definition
213
Art. 12 EXEMPTING CIRCUMSTANCES
Imbecility or Insanity
Exempting circumstances (non-imputah-lity) are those
grounds for exemption from punishment because there is wanting
in the agent of the crime any of the conditions which make the act
voluntary or negligent.
2. Basis
The exemption from punishment is based on the complete
absence of intelligence, freedom of action, or intent, or on the
absence of negligence on the part of the accused.
Under the Revised Penal Code, a person must act with
malice or negligence to be criminally liable. One who acts without
intelligence, freedom of action or intent does not act with malice.
On the other hand, one who acts without intelligence, freedom of
action or fault does not act with negligence.
Art. 12. Circumstances which exempt from criminal liability. — The

following are exempt from criminal liability:
1. An imbecile or an insane person, unless the latter has acted during a
lucid interval.
When the imbecile or an insane person has committed an act which the
law defines as a felony (delito), the court sha'l order his confinement in one of
the hospitals or asylums established for persons thus afflicted, which he shall
not be permitted to leave without first obtaining the permission of the same
court.
2. A person under nine years of age.*

3. A person over nine years of age and under fifteen, unless he has acted
with discernment, in which case, such minor shall be proceeded against in
accordance with the provisions of Article 80 of this Code.
*A child fifteen years of age or under is exempt from criminal liability under Rep. Act No.
9344 (Juvenile Justice and Welfare Act of 2006).
214
EXEMPTING CIRCUMSTANCES
Art. 12
Par. 1
When such minor is adjudged to be criminally irresponsible, the court,

in conformity with the provisions of this and the preceding paragraph, shall
commit him to the care and custody of his family w h o shall be charged with
his surveillance and education; otherwise, he shall be committed to the care of
some institution or person mentioned in said Article 80.**
4. Any person who, while performing a lawful act with due care, causes
an injury by mere accident without fault or intention of causing it.
5. Any person w h o acts under the compulsion of an irresistible force.
6. Any person w h o acts under the impulse of an uncontrollable fear of
an equal or greater injury.
7. Any person w h o fails to perform an act required by law, w h e n
prevented by some lawful or insuperable cause.
In exempting circumstances, there is a crime committed

but no criminal liability arises.
Technically, one who acts by virtue of any of the exempting
circumstances commits a crime, although by the complete absence of any of the
conditions which constitute free will or voluntariness of the act, no criminal
liability arise. (Guevara)
Burden of proof.
Any of the circumstances mentioned in Art. 12 is a matter of defense
and the same must be proved by the defendant to the satisfaction of the court.
Par. 1 — An imbecile or an insane person, unless the latter has acted

during a lucid interval.
Imbecility distinguished from insanity.

This paragraph establishes the distinction between imbecility and
insanity, because while the imbecile is exempt in all cases from
"Impliedly repealed by Rep. Act No. 9344 (Juvenile Justice and Welfare Act of 2006). See
explanations, infra.
215
Par. 1 Imbecility or Insanity
criminal liability, the insane is not so exempt if it can be shown that he acted
during a lucid interval.
During lucid interval, the insane acts with intelligence.
An imbecile is one who, while advanced in age, has a mental
development comparable to that of children between two and seven
years of age.
An imbecile within the meaning of Art. 12 is one who is deprived
completely of reason or discernment and freedom of the will at the time of
committing the crime. (People vs. Ambal, No. L-52688, Oct. 17, 1980, 100
SCRA 325, 333, citing People vs. Formigones, 87 Phil. 658, 660)
To constitute insanity, there must be complete deprivation

of intelligence or that there be a total deprivation of the
freedom
of the will.
The Supreme Court of Spain held that in order that the exempting
circumstance of insanity may be taken into account, it is necessary that there
be a complete deprivation of intelligence while committing the act, that is, that
the accused be deprived of reason; that he acts without the least discernment;
or that there be a total deprivation of freedom of the will. (People vs.
Formigones, 87 Phil.
658,661)
Insanity exists when there is a complete deprivation of intelligence in
committing the act, that is, the accused is deprived of reason, he acts without
the least discernment, because there is a complete absence of the power to
discern, or that there is a total deprivation of freedom of the will. (People vs.
Puno, No. L-33211, June 29, 1981, 105 SCRA 151, 158-159, citing earlier cases.
Also, People vs. Magallano, No. L-32978, Oct, 30, 1980, 100 SCRA 570, 578-
579)
Thus, mere abnormality of mental faculties is not enough, especially if the
offender has not lost consciousness of his acts. At most, it is only a mitigating
circumstance. (Art. 13, par. 9)
Procedure when the imbecile or the insane committed a

felony.
The court shall order his confinement in one of the hospitals or asylums
established for persons afflicted, which he shall not be Art. 12
Par. 1
216
permitted to leave without first obtaining the permission of the court.
But the court has no power to permit the insane person to leave the
ayslum without first obtaining the opinion of the Director of Health that he
may be released without danger. (Chin Ah Foo vs. Conception, 54 Phil. 775)
Who has the burden of proof to show insanity?

The defense must prove that the accused was insane at the time of the
commission of the crime, because the presumption is always in favor of sanity.
(People vs. Bascos, 44 Phil. 204, 206)
Sanity being the normal condition of the human mind, the prosecution
may proceed upon the presumption that the accused was sane and responsible
when the act was committed. The presumption is always in favor of sanity and
the burden of proof of insanity is on the defense. (People vs. Aquino, G.R. No.
87084, June 27, 1990, 186 SCRA 851, 858, citing cases)
How much evidence is necessary to overthrow the

presumption of sanity?
The wife of the accused and his cousin testified that the accused had
been more or less continuously out of his mind for many years. The assistant
district health officer who, by order of the court, examined the accused found
that the accused was a violent maniac. The physician expressed the opinion
that the accused was probably insane when he killed the deceased. The total
lack of motive on the part of the accused to kill the deceased bears out the
assumption that the former was insane. (People vs. Bascos, supra)
In order to ascertain a person's mental condition at the time of the act, it
is permissible to receive evidence of the condition of his mind during a
reasonable period both before and after that time. Direct testimony is not
required, nor are specific acts of derangement essential to establish insanity as
a defense. Mind can be known only by outward acts. Thereby, we read the
thoughts, the motives and emotions of a person and come to determine
whether his acts conform to the practice of people of sound mind. To prove
insanity, therefore, circumstantial evidence, if clear and convincing, will
suffice. (People vs. Bonoan, 64 Phil. 93)
Insanity at the time of the commission of the felony

distinguished from insanity at the time of the trial.
When a person was insane at the time of the commission of the felony, he
is exempt from criminal liability.
217
When he was sane at the time of the commission of the crime, but he
becomes insane at the time of the trial, he is liable criminally. The trial,
however, will be suspended until the mental capacity of the accused be
restored to afford him a fair trial.
Evidence of insanity.
The evidence of insanity must refer to the time preceding the act under
prosecution or to the very moment of its execution. If the evidence points to
insanity subsequent to the commission of the crime,
the accused cannot be acquitted. He is presumed to be sane when he
committed it. (U.S. vs. Guevara, 27 Phil. 547, 550; People vs. Fausto, No. L-
16381, Dec. 30, 1961, 3 SCRA 863, 866-867; People vs. Puno, No. L-33211,
June 29, 1981, 105 SCRA 151, 158)
If the insanity is only occasional or intermittent in its nature, the

presumption of its continuance does not arise. He who relies on such insanity
proved at another time must prove its existence also at the time of the
commission of the offense. Where it is shown that the defendant had lucid
intervals, it will be presumed that the offense was committed in one of them.
But a person who has been adjudged insane, or who has been committed to a
hospital or to an asylum for the insane, is presumed to continue to be insane.
(People vs. Bonoan, 64 Phil. 87)
When defense of insanity is not credible.

1) Appellant himself testified that he was acting very sanely that Monday
morning, as shown by the fact that he went to the canteen in a jovial
mood "singing, whistling, and tossing a coin in his hand;" he saw
persons inside the canteen x x x; he noticed the arrival of Lira who
banged his folders on the table, elbowed him, and said in a loud voice:
"ano ka;" he saw Lira put his right hand inside his pocket and with the
other hand pushed a chair towards him; he became "confused" because
he remembered that Lira threatened to kill him if he would see him
again; at this point "he lost his senses" and regained it when he heard
the voice of Mrs. Tan saying: "Loreto, don't do that;" and then he found
Art. 12
Par. 1
out that he had wounded Lira. If appellant was able to recall all those
incidents, we cannot understand why his memory stood still at that very
crucial moment when he stabbed Lira to return at the snap of the finger
as it were, after he accomplished the act of stabbing his victim. The
218
defense of insanity is incredible. (People vs. Renegado, No. L-27031, May
31,1974, 57 SCRA 275, 286-287)
2) The accused knew that his wife was dead because he was informed of
her death. He said that his wife quarrelled with him. She was irritable.
He remembered that a week before the incident he got wet while
plowing. He fell asleep without changing his clothes. He immediately
surrendered after the incident. He remembered that he rode on a
tricycle. During his confinement in jail he mopped the floor and cooked
food for his fellow prisoners. Sometimes, he worked in the town plaza or
was sent unescorted to buy food in the market. He is not insane.
(People vs. Ambal, No. L-52688, Oct. 17, 1980, 100 SCRA 325, 330-331,
337)
3) Government psychiatric doctors who had closely observed the accused
for a month and a half found him in good contact with his environment
and that he did not manifest any odd behavior for in fact he could relate
the circumstances that led to his confinement. He exhibited remorse for
killing the victim, his wife, and he voluntarily surrendered to the police
headquarters where he executed a statement confessing his misdeed. He
was coherent and intelligent. Before the killing, he was working for a
living through fishing three times a week and he himself fixed the prices
for his catch. The presumption of sanity has not been overcome. (People
vs. Magallano, No. L-32978, Oct. 30, 1980,
100 SCRA 570, 577-578)
4) The accused was afflicted with "schizophrenic reaction" but knew what
he was doing; he had psychosis, a slight destruction of the ego; in spite of
his "schizophrenic reaction," his symptoms were "not socially
incapacitating" and he could adjust to his environment. He could
distinguish between right and wrong. He had no delusions and he was
not mentally deficient. The accused was not legally insane when he killed
the hapless and helpless victim. (People vs. Puno, No. L-33211, June
29,1981,105 SCRA
151, 156, 159)
5) The mental illness of the accused was described as "organic mental
disorder with psychosis" but the doctor said that a person suffering
from insanity may know that what he is doing is wrong. He also
observed that the mental illness of the accused came on and off. When
interviewed upon his admission to the mental institution, he recalled
having taken 120 cc of cough syrup and consumed about 3 sticks of
marijuana before the commission of the crime, an admission confirming
his prior extrajudicial confession. The presence of his reasoning
219
faculties, which enabled him to exercise sound judgment and
satisfactorily articulate the aforesaid matters, sufficiently discounts any
intimation of insanity of the accused when he committed the dastardly
felonies. (People vs. Aquino, G.R. No. 87084, June 27,
1990, 186 SCRA 851, 862-863)
Dementia praecox is covered by the term insanity.

Thus, when a person is suffering from a form of psychosis, a type of
dementia praecox, homicidal attack is common, because of delusions that he is
being interfered with sexually, or that his property is being taken. During the
period of excitement, such person has no control whatever of his acts. (People
vs. Bonoan, supra)
The unlawful act of the accused may be due to his mental disease or a
mental defect, producing an "irresistible impulse," as when the accused has
been deprived or has lost the power of his will which would enable him to
prevent himself from doing the act.
In the Bonoan case, supra, an irresistible homicidal impulse was
considered embraced in the term "insanity."
Schizophrenia, formerly called dementia praceox.

Medical books describe schizophrenia as a chronic mental disorder
characterized by inability to distinguish between fantasy and reality and often
accompanied by hallucinations and delusions. Formerly called dementia
pracecox, it is the most common form of psychosis. (People vs. Aldemita, 145
SCRA 451 (1986) Symptomatically, schizophrenic reactions are recognizable
through odd and bizarre behavior apparent in aloofness or periods of
impulsive destructiveness and immature and exaggerated emotionality, often
ambivalently directed. The interpersonal perceptions are distorted in the more
serious states by delusions and hallucinations. In the most Art. 12
Par. 1
disorganized form of schizophrenic living, withdrawal into a fantasy life takes

place and is associated with serious thought disorder and profound habit
deterioration in which the usual social customs are disregarded. During the
initial stage, the common early symptom is aloofness, a withdrawal behind
barriers of loneliness, hopelessness, hatred and fear. Frequently, the patient
would seem preoccupied and dreamy and may appear "faraway." He does not
empathize with the feelings of others and manifests little concern about the
realities of life situations. The schizophrenic suffers from a feeling of rejection
and an intolerable lack of self-respect. He withdraws from emotional
220
involvement with other people to protect himself from painful relationships.
There is shallowness of affect, a paucity of emotional responsiveness and a loss
of spontaneity. Frequently, he becomes neglectful of personal care and
cleanliness.A variety of subjective experiences, associated with or influenced
by mounting anxiety and fears precede the earliest behavioral changes and
oddities. He becomes aware of increasing tension and confusion and becomes
distracted in conversation manifested by his inability to maintain a train of
thought in his conversations. Outwardly, this will be noticed as blocks or
breaks in conversations. The schizophrenic may not speak or respond
appropriately to his companions. He may look fixedly away, or he may appear
to stare, as he does not regularly blink his eyes in his attempt to hold his
attention. (People vs. Madarang, G.R. No. 132319, May 12, 2000)
Kleptomania.
If the accused appears to have been suffering from kleptomania when he
committed the crime of theft, how shall we regard his abnormal, persistent
impulse or tendency to steal? Is it an exempting circumstance or only a
mitigating circumstance?
The courts in the United States have conflicting opinions. Some believe
that it is an exempting circumstance. Others believe that it is only a mitigating
circumstance.
In this jurisdiction, the question has not been brought before the court
for its determination.
The case of a person suffering from kleptomania must be investigated
by competent alienist or psychiatrist to determine whether the impulse to
steal is irresistible or not. If the unlawful act of the accused is due "to his
mental disease or a mental defect, producing an irresistible impulse, as when
the accused has been deprived or has
lost the power of his will which would enable him to prevent himself from
doing the act," the irresistible impulse, even to take another's property, should
be considered as covered by the term "insanity." In the case of People vs.
Bonoan, 64 Phil. 87, an irresistible homicidal impulse was considered
embraced in the term "insanity." It may be said that a person who has lost the
power of his will, at the moment, also lost consciousness of his acts.
On the other hand, if the mental disease or mental defect of the accused
only diminishes the exercise of his will-power, and did not deprive him of the
consciousness of his acts, then kleptomania, if it be the result of his mental
disease or mental defect, is only a mitigating circumstance.
221
Epilepsy may be covered by the term "insanity."
Epilepsy is a chronic nervous disease characterized by fits, occurring at
intervals, attended by convulsive motions of the muscles and loss of
consciousness. Where the accused claimed that he was an epileptic but it was
not shown that he was under the influence of an epileptic fit when he
committed the offense, he is not exempt from criminal liability. (People vs.
Mancao and Aguilar, 49 Phil. 887)
Feeblemindedness is not imbecility.

In the case of People vs. Formigones, supra, it was held that
feeblemindedness is not exempting, because the offender could
distinguish right from wrong. An imbecile or an insane cannot distinguish right
from wrong.
Pedophilia is not insanity.

The doctor's testimony, however, did not help accused's case because
although he admitted having initially categorized accused as insane, the doctor
eventually diagnosed accused to be afflicted with pedophilia, a mental disorder
not synonymous with insanity. He explained that pedophilia is a sexual
disorder wherein the subject has strong, recurrent and uncontrollable sexual
and physical fantasies about children which he tries to fulfill, especially when
there are no people around. He claimed, however, that despite his affliction,
the subject could distinguish between right and wrong. In fact, he
Art. 12
Par. 1
maintained that pedophilia could be committed without necessarily killing the

victim although injuries might be inflicted on the victim in an effort to repel
any resistance. (People vs. Diaz, G.R. No. 130210, Dec. 8,1999)
Amnesia is not proof of mental condition of the accused.

Amnesia, in and of itself, is no defense to a criminal charge unless it is
shown by competent proof that the accused did not know the nature and
quality of his action and that it was wrong. Failure to remember is in itself no
proof of the mental condition of the accused when the crime was performed.
(People vs. Tabugoca.G.R. No. 125334, Jan. 28, 1998)
Other cases of lack of intelligence.
222
1. Committing a crime while in a dream.
One who, while sleeping, suddenly got up, got a bolo, and
upon meeting his wife who tried to stop him, wounded her and
also attacked other persons, is not criminally liable, it appearing
that the act was committed while in a dream. (People vs. Taneo, 58
Phil. 255) The act was done without criminal intent.
Somnambulism or sleepwalking, where the acts of the
person afflicted are automatic, is embraced in the plea of insanity
and must be clearly proven. (People vs. Gimena, 55 Phil. 604)
In the case of U.S. us. Odicta, 4 Phil. 309, it was held that the
case of the somnambulist falls under the rule that a person is not
criminally liable if his acts are not voluntary. The ruling in the
case of People vs. Gimena and that in the case of U.S. vs. Odicta are
not inconsistent. The act of a person is not voluntary when he does
not have intelligence and intent while doing the act.
a. Hypnotism. Whether or not hypnotism is so effective as to make
the subject act during artificial somnambulism, is still a
debatable question. (Albert)
2. Committing a crime while suffering from
malignant malaria.
223
Par. 2 Minor Under Nine Years
Thus, one who was suffering from malignant malaria when

she wounded her husband who died as a consequence is not
criminally liable, because such illness affects the nervous system
and causes among others such complication as acute melancholia
and insanity at times. (People vs. Lacena, 69 Phil. 350)
Basis of paragraph 1.
The exempting circumstance of insanity or imbecility is based on the
complete absence of intelligence, an element of voluntariness.
Par. 2. — A person under nine years of age.
"Under nine years" to be construed "nine years or less."

The phrase "under nine years" should be construed "nine years or
less;" as may be inferred from the next subsequent paragraph which does not
totally exempt a person "over nine years of age" if he acted with discernment.
(Guevara; See Art. 189, P.D. No. 603)
Age of absolute irresponsibility raised to fifteen years of

age.
Republic Act No. 9344 otherwise known as "Juvenile Justice and
Welfare Act of 2006" raised the age of absolute irresponsibility from nine (9)
to fifteen (15) years of age.
Under Section 6 of the said law, a child fifteen (15) years of age or under
at the time of the commission of the offense shall be exempt from criminal
liability. However, the child shall be subject to an intervention program as
provided under Section 20 of the same law.
The exempting circumstance of minority is based also on the complete
absence of intelligence.
Art. 12
Minor Over Nine and Under Fifteen Years Par. 3
224
Par. 3. — A person over nine years of age and under fifteen, unless he has
acted with discernment, in which case, such minor shall be
proceeded against in accordance with the provisions of Article
80 of this Code.
Paragraph 3, Article 12 RPC impliedly repealed by

Republic Act No. 9344.
Paragraph 3, Article 12 of the Revised Penal Code is deemed repealed
by the provision of Republic Act 9344 declaring a child fifteen years of age or
under exempt from criminal liability. The law provides thus:
"Section 6. Minimum Age of Criminal Responsibility. — A child
fifteen (15) years of age or under at the time of the commission of the
offense shall be exempt from criminal liability. However, the child shall
be subject to an intervention program pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of
age shall likewise be exempt from criminal liability and be subjected to
an intervention program, unless he/she has acted with discernment, in
which case, such child shall be subject to the appropriate proceedings in
accordance with this Act.
The exemption from criminal liability herein established does not
include exemption from civil liability, which shall be enforce in
accordance with existing laws."
Children above fifteen (15) but below eighteen (18) years

of age who acted without discernment exempt from
criminal liability.
A minor under eighteen (18) but above fifteen (15) must have acted with
discernment to incur criminal liability. The minor is presumed to have acted
without discernment since the phrase "unless he/she acted with discernment"
indicates an exception to the general rule that a minor under 18 but above 15
has acted without discernment.
Thus, it is incumbent upon the prosecution to prove that a minor who
is over 15 but under 18 years of age has acted with discernment, in order for
the minor not to be entitled to this exempting circumstance.
Par. 3 Minor Over Nine and Under Fifteen Years
Periods of criminal responsibility
225
Thus, under the Code as amended by Republic Act No. 9344 (Juvenile
Justice and Welfare Act of 2006), the life of a human being is divided into
four periods:
(1) The age of absolute irresponsibility — 9 years and below (infancy).
(2) The age of conditional responsibility — between 9 and 15 years.

(3) The age of full responsibility — 18 or over (adolescence) to 70
(maturity).
(4) The age of mitigated responsibility — over 9 and under 15,
offender acting with discernment; 15 or over but less than 18;
over 70 years of age.
Hence, senility which is the age over 70 years, although said to be the
second childhood, is only a mitigated responsibility. It cannot be considered as
similar to infancy which is exempting.
Meaning of "discernment."
The discernment that constitutes an exception to the exemption from
criminal liability of a minor under fifteen years of age but over nine, who
commits an act prohibited by law, is his mental capacity to understand the
difference between right and wrong, and such capacity may be known and
should be determined by taking into consideration all the facts and
circumstances afforded by the records in each case, the very appearance, the
very attitude, the very comportment and behaviour of said minor, not only
before and during the commission of the act, but also after and even during
the trial. (People vs. Doquena, 68 Phil. 580, 583; Guevarra vs. Almodovar,
G.R. No. 75256, Jan. 26, 1989, 169 SCRA 476, 481)
Discernment and Intent distinguished.

The terms "intent" and "discernment" convey two distinct thoughts.
While both are products of the mental processes within a person, "intent"
refers to the desired act of the person while "discernment" relates to the
moral significance that a person ascribes to the said act. Hence, a person may
not intend to shoot another but may be Art. 12
Minor Over Nine and Under Fifteen Years Par. 3
aware of the consequences of his negligent act which may cause injury to the
same person in negligently handling an air rifle. (Guevara vs. Almodovar,
supra, at 481)
226
Discernment may be shown by (1) the manner the crime
was committed, or (2) the conduct of the offender after its
commission.
1. Manner of committing the crime.
Thus, when the minor committed the crime during
nighttime to avoid detection or took the loot to another town to
avoid discovery, he manifested discernment. (People vs. Magsino,
G.R. No. 40176, May 3, 1934)
2. Conduct of offender.
The accused, 11 years old (disregard age: Case cited to
illustrate discernment of a minor) shot the offended party, who
had caught him shooting at the latter's mango fruits, with a
slingshot hitting the latter in one of his eyes, and after having done
so said: "Putang ina mo, mabuti matikman mo." It was held that
the first part of the remark clearly manifested the perverted
character of the accused and the second part reflected his
satisfaction and elation upon the accomplishment of his criminal
act. These facts indicate discernment on the part of the minor.
(People vs. Alcabao, C.A., 44 O.G. 5006)
Facts from which age is presumed must be stated for the

record.
The officer or court called upon to make a finding as to the age of the
accused should state in the record, not merely a general statement of the
personal appearance of the accused, but the particular fact or facts concerning
personal appearance which lead such officer or court to believe that his age
was as stated by said officer or court.
It would seem that this provision presupposes that the minor
committed the crime, but that the court finds that he acted without
discernment.
Par. 3 Minor Over Nine and Under Fifteen Years
Determination of Age.
The child in conflict with the law shall enjoy the presumption of
minority. He/She shall enjoy all the rights of a child in conflict with the law
until he/she is proven to be eighteen (18) years old or older. The age of a child
may be determined from the child's birth certificate, baptismal certificate or
any other pertinent documents. In the absence of these documents, age may be
227
based on information from the child himself/herself, testimonies of other
persons, the physical appearance of the child and other relevant evidence. In
case of doubt as to the age of the child, it shall be resolved in his/her favor.
Any person contesting the age of the child in conflict with the law prior
to the filing of the information in any appropriate court may file a case in a
summary proceeding for the determination of age before the Family Court
which shall decide the case within twenty-four (24) hours from receipt of the
appropriate pleadings of all interested parties.
If a case has been filed against the child in conflict with the law and is
pending in the appropriate court, the person shall file a motion to determine
the age of the child in the same court where the case is pending. Pending
hearing on the said motion, proceedings on the main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges and
other government officials concerned shall exert all efforts at determining the
age of the child in conflict with the law. (Sec. 7, Rep. Act No. 9344)
The allegation of "with intent to kill" in the information is

sufficient allegation of discernment.
Where the information for homicide filed in the court of first instance
alleges "that said accused, with the intent to kill, did then and there wilfully,
criminally, and feloniously push one Lolita Padilla, a child 8 1/2 years of age,
into a deep place x x x and as a consequence thereof Lolita got drowned and
died right then and there," it is held that the requirement that there should be
an allegation that she acted with discernment should be deemed amply met
with the allegation in the information that the accused acted "with the intent
to kill." The allegation clearly conveys the idea that she knew what would be
the consequence of her unlawful act of pushing her victim into deep water and
that she knew it to be wrong. (People vs. Neito, 103 Phil. 1133)
228
Art. 12
Accident Par. 4
The exempting circumstance in paragraph 3 of Art. 12 is based also on
the complete absence of intelligence.
Par. 4. — Any person who, while performing a lawful act with due care,
causes an injury by mere accident without fault or intention of
causing it.
Elements:
1. A person is performing a lawful act;
2. With due care;
3. He causes an injury to another by mere accident;

4. Without fault or intention of causing it. (See People vs. Vitug, 8
CAR [2s] 905, 909)
The person must be performing a lawful act.

While defending himself against the unjustified assault upon his person
made by his assailant, appellant Galacgac fired his revolver at random,
wounding two innocent persons.
Held: The discharge of a firearm in such a thickly populated place in the
City of Manila being prohibited and penalized by Article 155 of the Revised
Penal Code, appellant Galacgac was not performing a lawful act when he
accidentally hit and wounded Marina Ramos and Alfonso Ramos. Hence, the
exempting circumstance provided for in
Article 12, paragraph 4, of the Revised Penal Code, cannot be properly
invoked by appellant Galacgac. (People vs. Galacgac, 54 O.G. 1027)
Striking another with a gun in self-defense, even if it fired

and seriously injured the assailant, is a lawful act.
When the defendant drew his gun and with it struck the deceased after
the latter had given him a fist blow on the shoulder, the defendant was
performing a lawful act. The striking with the gun was a legitimate act of self-
defense. But we might ask—was the striking done with due care as required
by the second element for exemption? We believe so, since the striking could
not have been
229
Par. 4 Accident
done in any other manner except how it was done so by the appellant.
Whether the gun was cocked or uncocked, the striking could not have been
done in any other manner. The injury, therefore, that resulted from the firing
of the gun was caused by accident and without any fault or intention on the
part of defendant in causing it, in accordance with the 3rd and 4th requisites.
The trial court puts much stress on the fact that since the appellant
allegedly had his finger on the trigger with the gun already cocked it was
reckless and imprudent of him to have used the gun in striking the deceased.
We do not agree. Under the circumstances, striking him, as was done here,
and not shooting him, was the more prudent and reasonable thing to do,
whether the gun was cocked or uncocked. (People vs. Vitug, 8 C.A. Rep. 905;
People vs. Tiongco, C.A.,
63 O.G. 3610)
But the act of drawing a weapon in the course of a quarrel, not being in
self-defense, is unlawful—it is light threat (Art. 285, par. 1, Rev. Penal Code),
and there is no room for the invocation of accident as a ground for exemption.
(People vs. Reyta, Jr., 13 C.A. Rep. 1190)
The person performing a lawful act must do so with due

care, without fault or negligence.
Appellant claims exemption from criminal liability under Article
12, paragraph 4, of the Revised Penal Code which provides that any person
who, while performing a lawful act with due care, causes an injury by mere
accident without fault or intention of doing it is exempted from criminal
liability. But, this exempting circumstance cannot be applied to the appellant
because its application presupposes that there is no fault or negligence on the
part of the person performing the lawful act with due care, whereas, in this
case, the prosecution had duly established that the appellant was guilty of
negligence. (People vs. San Juan, C.A., 65 O.G. 11264) Examples of
accident.
U.S. vs. Tahedo
(15 Phil. 196)
Facts: The accused, while hunting, saw wild chickens and fired a shot. The
slug, after hitting a wild chicken, recoiled and struck the EXEMPTING
CIRCUMSTANCES Art. 12
Accident Par. 4
tenant who was a relative of the accused. The man who was injured died.
230
Held: If life is taken by misfortune or accident while the actor is in
the performance of a lawful act executed with due care and without
intention of doing harm, there is no criminal liability.
There is no question that the accused was engaged in the performance of

a lawful act when the accident occurred. He was not negligent or at fault,
because the deceased was not in the direction at which the accused fired his
gun. It was not foreseeable that the slug would recoil after hitting the wild
chicken.
A chauffeur, while driving his automobile on the proper side of the road
at a moderate speed and with due diligence, suddenly and unexpectedly saw a
man in front of his vehicle coming from the sidewalk and crossing the street
without any warning that he would do so. Because it was not physically
possible to avoid hitting him, the said chauffeur ran over the man with his car.
It was held that he was not criminally liable, it being a mere accident. (U.S. vs.
Tayongtong,
21 Phil. 476)
Just as the truck then being driven by the accused was passing the slow-
moving road roller, a boy about 10 or 12 years of age jumped from the step of
the side board of the road roller directly in front of the truck, and was
knocked down, ran over and instantly killed. The accused was acquitted of all
criminal liability arising out of the unfortunate accident which resulted in the
death of the boy. (U.S. vs. Knight, 26 Phil. 216)
What is an accident?
An accident is something that happens outside the sway of our will, and
although it comes about through some act of our will, lies beyond the bounds of
humanly foreseeable consequences.
If the consequences are plainly foreseeable, it will be a case of
negligence. (Albert)
Accident presupposes lack of intention to commit the

wrong done.
The exempting circumstance of Art. 12(4) of the Revised Penal
Code refers to purely accidental cases where there was absolutely
Par. 4 Accident
no intention to commit the wrong done. It contemplates a situation where a

person is in the act of doing something legal, exercising due
care, diligence and prudence but in the process, produces harm or injury to
someone or something not in the least in the mind of the actor — an
231
accidental result flowing out of a legal act. (People vs. Gatela, 17 CAE [2s]
1047, 1055)
Case of negligence, not accident.

As the two persons fighting paid him no attention, the defendant drew
a .45 caliber pistol and shot twice in the air. The bout continued, however, so
he fired another shot at the ground, but unfortunately the bullet ricocheted
and hit Eugenio Francisco, an innocent bystander, who died thereafter. Held:
The mishap should be classed as homicide through reckless imprudence. It is
apparent the defendant wilfully discharged his gun, without taking the
precautions demanded by the circumstances that the district was populated,
and the likelihood that his bullet would glance over the hard pavement of the
thoroughfare. (People vs. Nocum, 77 Phil. 1018)
Comment: The consequence here was clearly foreseeable.
Accident and negligence, intrinsically contradictory.

In Jarco Marketing Corporation v. Court of Appeals, 321 SCRA
375 (1999), the Supreme Court held that an accident is a fortuitive
circumstance, event or happening; an event happening without any human
agency, or if happening wholly or partly through human agency, an event
which under the circumstance is unusual or unexpected by the person to
whom it happens. Negligence, on the other hand, is the failure to observe, for
the protection of the interest of another person, that degree of care, precaution
and vigilance which the circumstances justly demand without which such
other person suffers injury. Accident and negligence are intrinsically
contradictory; one cannot exist with the other. (People vs. Fallorina, G.R. No.
137347, March 4, 2004)
The death of the deceased in this case was considered

caused by mere accident.
The accused was prosecuted for having killed her husband.
Explaining what took place, she said, in part: "When the door was ajar my son
went in, and then my husband pushed it and as I saw
EXEMPTING CIRCUMSTANCES Art. 12
Accident Par. 4
that he was about to crush my son's head, I jabbed my husband with the point
of the umbrella downwards to prevent him from crushing my son's head." We
find nothing improbable in this statement and if we add to this the absence of
any reasonable motive to prompt said defendant to injure her husband, we are
compelled to conclude that in thrusting her umbrella in the opening of the
door in question, she did so to free her son from the imminent danger of
having his head crushed or being strangled; and if she thus caused her
232
husband's injury, it was by a mere accident, without any fault or intention to
cause it. (People vs. Ayaya, 52 Phil. 354, 358)
When claim of accident not appreciated.

1) Repeated blows negate claim of wounding by mere accident.
(People vs. Taylaran, No. L-49149, Oct. 23,1981,108 SCRA 373,
376)
2) Accidental shooting is negated by threatening words preceding it
and still aiming the gun at the prostrate body of the victim, instead
of immediately helping him. (People vs. Reyes, No. L-33154, Feb.
27, 1976, 69 SCRA 474, 478)
3) Husband and wife had an altercation. The deceased husband got a
carbine and holding it by the muzzle raised it above his right
shoulder in an attempt to strike accused wife. She side-stepped and
grappled with him for the possession of the gun and in the scuffle
the gun went off, the bullet
- hitting her husband in the neck. So went the version of the
accused. Held: It was difficult, if not well-nigh impossible, for her
who was frail and shorter than her husband, who was robust and
taller, to have succeeded in taking hold of the carbine, for if her
husband was to strike her with the butt of the carbine and she
side-stepped, he would not have continued to hold the carbine in a
raised position. Actual test during the trial showed that the
carbine was not defective and could not fire without pressing the
trigger. The absence of any powder burns at the entrance of the
wound in the body of the deceased is convincing proof that he was
shot from a distance, and not with the muzzle of the gun almost
resting on his shoulder or the back of the
neck. (People vs. Samson, No. L-14110, March 29, 1963, 7
SCRA 478, 482-483)
Par. 5 Irresistible Force
The exempting circumstance in paragraph 4 of Art. 12 is based on lack
of negligence and intent. Under this circumstance, a person does not commit
either an intentional felony or a culpable felony.
Par. 5. — Any person who acts under the compulsion of an irresistible

force.
233
This exempting circumstance presupposes that a person is compelled by
means of force or violence to commit a crime.
Elements:
1. That the compulsion is by means of physical force.
2. That the physical force must be irresistible.
3. That the physical force must come from a third person.

Before a force can be considered to be an irresistible one, it must
produce such an effect upon the individual that, in spite of all resistance, it
reduces him to a mere instrument and, as such, incapable of committing a
crime. It must be such that, in spite of the resistance of the person on whom it
operates, it compels his members to act and his mind to obey. Such a force can
never consist in anything which springs primarily from the man himself; it
must be a force which acts upon him from the outside and by a third person.
(U.S. vs. Elicanal, 35 Phil. 209)
Example:
In the case of U.S. vs. Caballeros, et al., 4 Phil. 350, it appears that
Baculi, one of the accused who was not a member of the band which
murdered some American school-teachers, was in a plantation gathering
bananas. Upon hearing the shooting, he ran. However, Baculi was seen
by the leaders of the band who called him, and striking him with the butts
of their guns, they compelled him to bury the bodies.
Held: Baculi was not criminally liable as accessory for concealing
the body of the crime (Art. 19) of murder committed
Irresistible Force Par. 5
by the band, because Baculi acted under the compulsion of an

irresistible force.
No compulsion of irresistible force.

The pretension of an accused that he was threatened with a gun by his
friend, the mastermind, is not credible where he himself was armed with a
rifle. (People vs. Sarip, Nos. L-31481-31483, Feb. 28, 1979, 88 SCRA 666, 673-
674)
Passion or obfuscation cannot be irresistible force.

The irresistible force can never consist in an impulse or passion, or
obfuscation. It must consist of an extraneous force
234
coming from a third person. (Dec. of Sup. Ct. of Spain, March 15, 1876)
The exempting circumstance in paragraph 5 of Art. 12 is based on the
complete absence of freedom, an element of voluntariness.
A person who acts under the compulsion of an irresistible force, like one
who acts under the impulse of uncontrollable fear of equal or greater injury, is
exempt from criminal liability because he does not act with freedom. (People
vs. Loreno, No. L-54414, July 9, 1984, 130 SCRA 311, 321)
Nature of force required.

The force must be irresistible to reduce the actor to a mere instrument
who acts not only without will but against his will. The duress, force, fear or
intimidation must be present, imminent and impending and of such a nature
as to induce a well-grounded apprehension of death or serious bodily harm if
the act is not done. A threat of future injury is not enough. The compulsion
must be of such a character as to leave no opportunity to the accused for
escape or self-defense in equal combat. (People vs. Loreno, No. L-54414, July
9, 1984, 130 SCRA 311, 321-322, citing People vs. Villanueva, 104
Phil. 450)
Par. 6 Uncontrollable Fear
Par. 6. — Any person who acts under the impulse of an uncontrollable

fear of an equal or greater injury.
This exempting circumstance also presupposes that a person is

compelled to commit a crime by another, but the compulsion is by means of
intimidation or threat, not force or violence.
Elements:
1. That the threat which causes the fear is of an evil greater than or at
least equal to, that which he is required to commit;
2. That it promises an evil of such gravity and imminence that the
ordinary man would have succumbed to it. (U.S. vs. Elicanal, 35
Phil. 209, 212, 213)
For the exempting circumstance of uncontrollable fear to be invoked
successfully, the following requisites must concur: (a) existence of an
uncontrollable fear; (b) the fear must be real and imminent; and (c) the fear of
an injury is greater than or at least equal to that committed. (People vs.
Petenia, No. L-51256, Aug. 12, 1986, 143 SCRA 361, 369)
235
Illustration:
Liberato Exaltacion and Buenaventura Tanchinco were compelled
under fear of death to swear allegiance to the Katipunan whose purpose
was to overthrow the government by force of arms.
In this case, the accused cannot be held criminally liable for
rebellion, because they joined the rebels under the impulse of an
uncontrollable fear of an equal or greater injury. (U.S. vs. Exaltacion, 3
Phil. 339)
The penalty for rebellion, the crime which Exaltacion was required to
commit, is prision mayor, that is, imprisonment for a period of from 6 years
and 1 day to 12 years, and fine. The act which he was asked to commit was to
swear allegiance to the Katipunan and become one of those engaged in
overthrowing the government by force of arms. If he did not commit it, he
would be killed. Death is a much greater injury than imprisonment for 12
years and paying a fine.
Uncontrollable Fear Par. 6
But if A had threatened to burn the house of B should the latter not kill
his (B's) father, and B killed his father for fear that A might burn his (B's)
house, B is not exempt from criminal liability for the reason that the evil with
which he was threatened was much less than that of killing his father.
Nature of duress as a valid defense.

Duress as a valid defense should be based on real, imminent, or
reasonable fear for one's life or limb and should not be speculative, fanciful, or
remote fear. (People vs. Borja, No. L-22947, July 12,1979,
91 SCRA 340, 355, citing People vs. Quilloy, 88 Phil. 53)
The accused must not have opportunity for escape or

selfdefense.
A threat of future injury is not enough. The compulsion must be of such
a character as to leave no opportunity to the accused for escape or self-defense
in equal combat.
Duress is unavailing where the accused had every opportunity to run
away if he had wanted to or to resist any possible aggression because he was
also armed. (People vs. Palencia, No. L-38957, April 30, 1976, 71 SCRA 679,
690; People vs. Abanes, No. L-30609, Sept. 28, 1976, 73 SCRA 44, 47)
Where the accused, who testified that he was intimidated into
committing the crime, had several opportunities of leaving the gang which had
decided to kidnap the victim, his theory that he acted
under intimidation is untenable. (People vs. Parulan, 88 Phil. 615, 623)
236
Where the accused testified that he joined the band because he was
threatened by the leader thereof, but it appears that the leader was armed
with a revolver only, while the accused was armed with a rifle, so that he could
have resisted said leader, it was held that the accused did not act under the
impulse of an uncontrollable fear
of an equal or greater injury. (People vs. Vargas and Kamatoy, C.A.,
45 O.G. 1332)
As regards accused Domingo Golfeo, the evidence is clear that it was he
who first struck Areza with the butt of his gun hitting him on the side of his
body, then gave him a fist blow on his stomach,
Par. 6 Uncontrollable Fear
and after he had been taken to a secluded place, it was he who ordered Areza
to lie down in the fashion adopted by the Kempetai during gloomy days of
Japanese occupation and in that position gave him a blow on the back of his
neck which almost severed his head from the body. His participation in the
killing of Areza cannot therefore be doubted. His only defense is that he did so
in obedience to the order of his commander, and because he acted under the
influence of uncontrollable fear, he should be exempt from criminal
responsibility.
This defense of Golfeo is clearly untenable not only because of the well-
settled rule that obedience to an order of a superior will only justify an act
which otherwise would be criminal when the order is for a lawful purpose, but
also because the circumstances under which Golfeo participated in the torture
and liquidation of Areza cannot in any way justify his claim that he acted
under an uncontrollable fear of being punished by his superiors if he
disobeyed their order. In the first place, at the time of the killing, Golfeo was
armed with an automatic carbine such that he could have protected himself
from any retaliation on the part of his superiors if they should threaten to
punish him if he disobeyed their order to kill Areza. Tn the second place, the
evidence shows that Areza was brought to a secluded place quite far from that
where his superiors were at the time and in such a predicament, he and his
companion Arsenal could have escaped with Areza to avoid the ire of their
superiors. The fact that he carried out their order although his superiors were
at some distance from him and that without pity and compunction he struck
his victim in a Kempetai fashion shows that he acted on the matter not
involuntarily or under the pressure of fear or force, as he claims, but out of his
own free will and with the desire to collaborate with the criminal design of his
superiors. (People vs. Rogado, et ai., 106 Phil. 816)
Command ofHukbalahap killers, as cause of uncontrollable fear.

Timoteo Montemayor was accused of murder, for having told his two
companions to fetch shovels and to dig a grave and for having walked behind
237
the Hukbalahap killers to the place of the execution of the victim. It appears
that the two Hukbalahaps were ruthless killers and were then in a mood to
inflict extreme and summary punishment for disobedience to the command.
The place was isolated, escape was at least risky, and protection by lawfully
constituted authorities was EXEMPTING CIRCUMSTANCES Art. 12
Uncontrollable Fear Par. 6
out of reach. The accused was acquitted, for having acted under the impulse of
uncontrollable fear of an equal or greater injury. (People vs. Regala, et al,
G.R. No. L-1751, May 28, 1951)
In treason.
In the eyes of the law, nothing will excuse that act of joining an enemy,
but the fear of immediate death. (People vs. Bagalawis, 78 Phil. 174, citing the
case of Republica vs. M'Carty, 2 Dall., 36,1 Law, ed., 300, 301)
This ruling is similar to that in the Exaltacion case.
Speculative, fanciful and remote fear is not uncontrollable

fear.
The defendant ordered the deceased whose both hands were tied at the
back to kneel down with the head bent forward by the side of the grave
already prepared for him by order of said defendant. Then, defendant hacked
the head of the deceased with a Japanese sabre and immediately kicked the
prostrate body of the victim into the grave.
When prosecuted for murder, the defendant claimed that he had been
ordered by Major Sasaki to kill the deceased. He also claimed that he could
not refuse to comply with that order, because the Japanese officer made a
threat.
Held: If the only evidence relating to a sort of a threat is the testimony of
the defendant: "As they insisted and I informed them that I could not do it,
then Captain Susuki told me, Tou have to comply with that order of Major
Sasaki; otherwise, you have to come along with us,'" that threat is not of such
a serious character and imminence as to create in the mind of the defendant an
uncontrollable fear that an equal or greater evil or injury would be inflicted
upon him if he did not comply with the alleged order to kill the deceased.
(People vs.
Moreno, 77 Phil. 549)
Mere fear of a member of the Huk movement to disobey or refuse to
carry out orders of the organization, in the absence ofproof of actual
physical or moral compulsion to act, is not sufficient to exempt the
accused from criminal liability. (People vs. Fernando, No. L-24781, May 29,
1970, 33 SCRA 149, 157)
238
Par. 7 Prevented By Insuperable Cause
Real, imminent or reasonable fear.

The case of U.S. vs. Exaltacion, 3 Phil. 339, is the example. There is here
fear of immediate death.
A threat of future injury is not enough.
To appreciate duress as a valid defense, a threat of future injury is not
enough. It must be clearly shown that the compulsion must be of such
character as to leave no opportunity for the accused to escape. (People vs.
Palencia, No. L-38957, April 30, 1976, 71 SCRA 679, 690;
People vs. Abanes, No. L-30609, Sept. 28, 1976, 73 SCRA 44, 47)
Distinction between irresistible force and uncontrollable

fear.
In irresistible force (par. 5), the offender uses violence or physical force
to compel another person to commit a crime; in uncontrollable fear (par. 6),
the offender employs intimidation or threat in compelling another to commit a
crime.
The exempting circumstance in paragraph 6 of Art. 12 is also based on
the complete absence of freedom.
"Actus me invito factus non est meus actus." ("An act done by me against
my will is not my act.")
Par. 7. — Any person who fails to perform an act required by law, when
Elements:
1. That an act is required by law to be done;
2. That a person fails to perform such act;

3. That his failure to perform such act was due to some lawful or
insuperable cause.
When prevented by some lawful cause.

Example:
A confessed to a Filipino priest that he and several other persons were in
conspiracy against the Government. Under Art. 116, a Filipino
239
Prevented By Insuperable Cause Par. 7
citizen who knows of such conspiracy must report the same to the governor or
fiscal of the province where he resides. If the priest does not disclose and make
known the same to the proper authority, he is exempt from criminal liability,
because under the law, the priest cannot be compelled to reveal any
information which he came to know by reason of the confession made to him
in his professional capacity.
(Vide, Sec. 24[d], Rule 130, Rules of Court)
When prevented by some insuperable cause.

Examples:
1. The municipal president detained the offended party for three
days because to take him to the nearest justice of the peace
required a journey for three days by boat as there was no other
means of transportation. (U.S. vs. Vicentillo, 19 Phil. 118, 119)
Under the law, the person arrested must be delivered to the
nearest judicial authority at most within eighteen hours (now
thirty-six hours, Art. 125, Rev. Penal Code, as amended);
otherwise, the public officer will be liable for arbitrary detention.
The distance which required a journey for three days was
considered an insuperable cause. Hence, it was held that the
accused was exempt from criminal liability.
2. A mother who at the time of childbirth was overcome by severe
dizziness and extreme debility, and left the child in a thicket where
said child died, is not liable for infanticide, because it was
physically impossible for her to take home the child. (People vs.
Bandian, 63 Phil. 530, 534-535)
The severe dizziness and extreme debility of the woman
constitute an insuperable cause.
The circumstance in paragraph 7 of Art. 12 exempts the accused from
criminal liability, because he acts without intent, the third condition of
voluntariness in intentional felony.
In all the exempting circumstances, intent is wanting in the

agent of the crime.
Intent presupposes the exercise of freedom and the use of intelligence.
Hence, in paragraphs 1, 2 and 3 of Art. 12, the imbecile, insane,
240
Art. 12
ABSOLUTORY CAUSES
or minor, not having intelligence, does not act with intent. The person acting
under any of the circumstances mentioned in paragraphs 5 and 6 of Art. 12,
not having freedom of action, does not act with intent. In paragraph 4 of Art.
12, it is specifically stated that the actor causes an injury by mere accident
without intention of causing it.
Distinction between justifying and exempting

circumstances.
(1) A person who acts by virtue of a justifying circumstance does not
transgress the law, that is, he does not commit any crime in the eyes of
the law, because there is nothing unlawful in the act as well as in the
intention of the actor. The act of such person
is in itself both just and lawful.
In justifying circumstances, there is neither a crime nor a criminal. No
civil liability, except in par. 4 (causing damage to another in state of necessity).
(2) In exempting circumstances, there is a crime but no criminal liability.
The act is not justified, but the actor is not criminally liable. There is
civil liability, except in pars. 4 and 7 (causing an injury by mere
accident; failing to perform an act required by law when prevented by
some lawful or insuperable cause) of Art. 12.
(See Art. 101 which does not mention pars. 4 and 7 of Art. 12)
Absolutory causes, defined.

Absolutory causes are those where the act committed is a crime but for
reasons of public policy and sentiment there is no penalty imposed.
Other absolutory causes.

In addition to the justifying circumstances (Art. 11) and the exempting
circumstances (Art. 12), there are other absolutory causes in the following
articles, to wit:
Art. 6. — The spontaneous desistance of the person who commenced the
commission of a felony before he could perform all the acts of execution.
Art. 20. — Accessories who are exempt from criminal liability. — The
penalties prescribed for accessories shall not be imposed upon those who are
such with respect to their spouses, ascendants, descendants, legitimate,
natural, and adopted brothers and sisters, or ABSOLUTORY CAUSES
Art. 12
241
Art. 12 ENTRAPMENT
relatives by affinity within the same degrees, with the single exception of
accessories falling with the provisions of paragraph 1 of the next preceding
article.
The provisions of paragraph 1 of Art. 19 read, as follows:
"By profiting themselves or assisting the offenders to profit by the
effects of the crime."
Art. 124, last paragraph. — The commission of a crime, or violent
insanity or any other ailment requiring the compulsory confinement of the
patient in a hospital, shall be considered legal grounds for the detention of any
person.
Art. 247, pars. 1 and 2. — Death or physical injuries inflicted under
exceptional circumstances. — Any legally married person who, having
surprised his spouse in the act of committing sexual intercourse with another
person, shall kill any of them or both of them in the act or immediately
thereafter, or shall inflict upon them any serious physical injury, shall suffer
the penalty of destierro.
If he shall inflict upon them physical injuries of any other kind, he shall
be exempt from punishment.
Art. 280, par. 3. — The provisions of this article (on trespass to dwelling)
shall not be applicable to any person who shall enter another's dwelling for
the purpose of preventing some serious harm to himself, the occupants of the
dwelling or a third person, nor shall it be applicable to any person who shall
enter a dwelling for the purpose of rendering some service to humanity or
justice, nor to anyone who shall enter cafes, taverns, inns and other public
houses, while the same are open.
Art. 332. — Persons exempt from criminal liability. — No criminal, but
only civil, liability shall result from the commission of the crime of theft,
swindling or malicious mischief committed or caused mutually by the
following persons:
1. Spouses, ascendants and descendants, or relatives by affinity in
the same line;
2. The widowed spouse with respect to the property which belonged
to the deceased spouse before the same shall have passed into the
possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in-law, if
living together.
Art. 344, par. 4. — In cases of seduction, abduction, acts of
lasciviousness and rape, the marriage of the offender with the offended party
242
shall extinguish the criminal action or remit the penalty already imposed
upon him. The provisions of this paragraph shall also be applicable to the co-
principals, accomplices and accessories after the
fact of the above-mentioned crimes.
Instigation is an absolutory cause.

Example:
An internal revenue agent, representing himself as a private
individual engaged in gambling, approached the accused and induced
the latter to look for an opium den where he said he could smoke opium.
The agent went to the accused three times to convince the latter of his
desire to smoke opium. Because of the insistence of the agent, the
accused made efforts to look for a place where both of them could
smoke opium until finally he found one. The agent and the accused went
to the place which turned out to be the house of a Chinaman, and there
the agent received an opium pipe and paid f*2.00 for the service to both
of them. After a while, the agent left. He returned later to arrest the
accused allegedly for smoking opium.
Held: The accused was not criminally liable. He was instigated to
commit the crime of smoking opium. (U.S. vs. Phelps, 16 Phil. 440)
Suppose that the agent in that case induced the accused to sell opium to
him and the accused sold opium, could the accused be held liable for illegal
possession of opium?
Yes, because the accused was then in possession of opium and the mere
possession of opium is a violation of the law within itself.
Basis of exemption from criminal liability.

A sound public policy requires that the courts shall condemn this
practice (instigation) by directing the acquittal of the accused.
Entrapment is not an absolutory cause.

Example:
The accused wrote to his correspondent in Hongkong to send to
him a shipment of opium. This opium had been in
243
ENTRAPMENT
Art. 12
Hongkong for sometime, awaiting a ship that would go direct to Cebu.

The Collector of Customs of Cebu received information that the
accused was intending to land opium in the port. The Collector promised
the accused that he would remove all the difficulties in the way, and for
this purpose agreed to receive P2.000.00. Juan Samson, a secret
serviceman, pretended to smooth the way for the introduction of the
prohibited drug.
The accused started landing the opium. At this time, the agents of
the law seized the opium and had the accused prosecuted.
Held: It is true that Juan Samson smoothed the way for the
introduction of the prohibited drug, but that was after the accused had
already planned its importation and ordered for said drug.
Juan Samson neither induced nor instigated the accused to import
the opium in question, but pretended to have an understanding with the
Collector of Customs, who had promised them that he would remove all
the difficulties in the way of their enterprise so far as the customs house
was concerned.
This is not a case where an innocent person is induced to commit a
crime merely to prosecute him, but it is simply a trap set to catch a
criminal. (People vs. Lua Chua and Uy Se Tieng, 56 Phil. 44)
Suppose, the accused had not yet ordered for opium in Hongkong when
he talked with the Collector of Customs but that on the strength of the
assurance of the Collector of Customs, he later ordered for opium in
Hongkong, would it be instigation? Yes, it would be instigation, not
entrapment, because the accused was instigated to import a prohibited drug, a
crime punished by Art. 192.
The doctrines referring to the entrapment of offenders and instigation
to commit crime, as laid down by the courts of the United States, are
summarized in 16 Corpus Juris, page 88, Section 57, as follows:
"ENTRAPMENT AND INSTIGATION. - While it has been said that the

practice of entrapping persons into crime for the purpose of instituting criminal
prosecutions is to be deplored, and while instigation, as distinguished from mere
entrapment, has often been condemned and has sometimes been held to prevent
the act from being criminal or punishable, the general rule is that it is no
defense to the perpetrator of a crime that facilities for its commission were
purposely placed in his way, or that the criminal act was done at the 'decoy
solicitation' of persons seeking to expose the criminal, or that detectives feigning
244
complicity in the act were present and apparently assisting its commission.
Especially is this true in that class of cases where the offense is one of a kind
habitually committed, and the solicitation merely furnishes evidence of a course of
conduct. Mere deception by the detective will not shield defendant, if the offense
was committed by him free from the influence or the instigation of the detective.
The fact that an agent of an owner acts as a supposed confederate of a thief is no
defense to the latter in a prosecution for larceny, provided the original
design was formed independently of such agent; and where a person approached
by the thief as his confederate notifies the owner or the public authorities, and
being authorized by them to do so, assists the thief in carrying out the plan, the
larceny is nevertheless committed." (Cited in People vs. Lua Chu and Uy Se
Tieng, 56 Phil. 44)
A detective representing to be a private individual, jobless, and in need

of money, befriended a well-known thief. The thief told him that there was
easy money around if he would take a chance. The detective asked the thief
what it was and the latter told him that he was going to break into the house of
a rich man to steal some jewels and money. The detective pretended to have
agreed with him and the two went to the house, entered it through the
window, and once inside, the thief opened with a false key the wardrobe in the
house and took jewels and money. Then and there the detective arrested the
thief.
Is the thief criminally liable for the robbery committed?
Yes, it was entrapment. The fact that an agent of the law acted as a
supposed confederate of a thief is no defense to the latter, provided that the
original design was formed by the thief independently of such agent.
Entrapment and instigation distinguished.

There is a wide difference between entrapment and instigation, for while
in the latter case the instigator practically induces the wouldbe accused into
the commission of the offense and himself becomes a ENTRAPMENT AND
INSTIGATION Art. 12 DISTINGUISHED
co-principal, in entrapment, ways and means are resorted to for the purpose
of trapping and capturing the lawbreaker in the execution of his criminal
plan. Entrapment is no bar to the prosecution and conviction of the
lawbreaker. But when there is instigation, the accused must be acquitted.
(People vs. Galicia, C.A., 40 O.G. 4476; People vs. Yutuc,
G.R. No. 82590, July 26, 1990, 188 SCRA 1, 21; People vs. Payumo,
G.R. No. 81761, July 2, 1990, 187 SCRA 64, 71; Araneta vs. Court of
Appeals, No. L-46638, July 9, 1986,142 SCRA 534, 540)
245
Art. 12 ENTRAPMENT
In entrapment, the entrapper resorts to ways and means to trap and
capture a lawbreaker while executing his criminal plan. In instigation, the
instigator practically induces the would-be defendant into committing the
offense, and himself becomes a co-principal. In entrapment, the means
originates from the mind of the criminal. The idea and the resolve to commit
the crime come from him. In instigation, the law enforcer conceives the
commission of the crime and suggests to the accused who adopts the idea and
carries it into execution. The legal effects of entrapment do not exempt the
criminal from liability. Instigation does. (People vs. Marcos, G.R. No. 83325,
May 8, 1990, 185 SCRA 154, 164, citing earlier cases)
In instigation, a public officer or a private detective induces an innocent
person to commit a crime and would arrest him upon or after the commission
of the crime by the latter. It is an absolutory cause.
In entrapment, a person has planned, or is about to commit, a crime and
ways and means are resorted to by a public officer to trap and catch the
criminal. Entrapment is not a defense.
Instigation must be made by public officers or private

detectives.
A criminal act may not be punishable if the accused was induced to
commit it by active cooperation and instigation on the part of public detectives.
(State vs. Hayes, 105 Mo. 76,16 S.W. 514, 24 Am. St. Rep. 360)
A sound public policy requires that the courts shall condemn this
practice by directing an acquittal whenever it appears that the public
authorities or private detectives, with their cognizances, have taken active steps
to lead the accused into the commission of the act. As was said in a Michigan
case: "Human nature is frail enough at best, and requires no encouragement
in wrongdoing. If we cannot
246
Art. 12
COMPLETE DEFENSES IN CRIMINAL CASES
assist another, and prevent him from committing crime, we should at least
abstain from any active efforts in the way of leading him into
temptation." (Saunders vs. People, 38 Mich. 218, 222)
If the one who made the instigation is a private individual, not
performing public function, both he and the one induced are criminally liable
for the crime committed: the former, as principal by induction; and the latter,
as principal by direct participation.
There is neither instigation nor entrapment when the

violation of the law is simply discovered.
Charged with and prosecuted for a violation of Executive Order
No. 62, series of 1945, the accused having sold a can of Mennen Talcum
Powder for PI.00 when the ceiling price for said article was only P0.86, the
defense contended that the government agent induced the accused to violate
the law by purchasing from him the article and paying for it in an amount
above the ceiling price.
Held: The agent did not induce the accused to violate the law. He simply
discovered the violation committed by the accused when he (the agent)
purchased the article from him. It was the accused who charged and collected
the price. There was not even an entrapment. (People vs. Tan Tiong, C.A., 43
O.G. 1285)
Assurance of immunity by a public officer does not

exempt a person from criminal liability.
Thus, the accused who delivered to the barrio lieutenant a gun and
ammunition when the latter announced "that anyone who is concealing
firearms should surrender them so that he will not be penalized" is not
exempt from criminal responsibility arising from the possession of the
unlicensed firearm and ammunition. In fact, not even the President could give
such assurance of immunity to any violator of the firearm law. His
constitutional power of clemency can be exercised only after conviction.
(People vs. Alabas, C.A., 52 O.G. 3091)
Complete defenses in criminal cases.

1. Any of the essential elements of the crime charged is not proved by the
prosecution and the elements proved do not constitute any crime.
MITIGATING CIRCUMSTANCES Art. 12
247
Art. 13 MITIGATING CIRCUMSTANCES
2. The act of the accused falls under any of the justifying circumstances.
(Art. 11)
3. The case of the accused falls under any of the exempting circumstances.
(Art. 12)
4. The case is covered by any of the absolutory causes:

a. Spontaneous desistance during attempted stage (Art. 6), and no
crime under another provision of the Code or other penal law is
committed.
b. Light felony is only attempted or frustrated, and is not against
persons or property. (Art. 7)
c. The accessory is a relative of the principal. (Art. 20)
d. Legal grounds for arbitrary detention. (Art. 124)
e. Legal grounds for trespass. (Art. 280)

f. The crime of theft, swindling or malicious mischief is committed
against a relative. (Art. 332)
g. When only slight or less serious physical injuries are inflicted by
the person who surprised his spouse or daughter in the act of
sexual intercourse with another person. (Art. 247)
h. Marriage of the offender with the offended party when the crime
committed is rape, abduction, seduction, or acts of lasciviousness.
(Art. 344)
i. Instigation.
5. Guilt of the accused not established beyond reasonable doubt.
6. Prescription of crimes. (Art. 89)

7. Pardon by the offended party before the institution of criminal action in
crime against chastity. (Art. 344)
III. Mitigating circumstances.

1. Definition
Mitigating circumstances are those which, if present in
248
Classes
the commission of the crime, do not entirely free the actor from
criminal liability, but serve only to reduce the penalty.
2. Basis
Mitigating circumstances are based on the diminution of either
freedom of action, intelligence, or intent, or on the lesser
perversity of the offender.
Classes of mitigating circumstances.

1. Ordinary mitigating — those enumerated in subsections l t o 10 of
Article 13.
Those mentioned in subsection 1 of Art. 13 are ordinary
mitigating circumstances, if Art. 69, for instance, is not applicable.
2. Privileged mitigating —
a. Art. 68. Penalty to be imposed upon a person under eighteen
years of age. - When the offender is a minor under eighteen
years of age and his case falls under the provisions of the
Juvenile Justice and Welfare Act, the following rules shall be
observed:
(1) A person under fifteen years of age, and a
person over fifteen and under eighteen years of age who
acted without discernment, are exempt from criminal
liability;
(2) Upon a person over fifteen and under
eighteen years of age who acted with discernment, the
penalty next lower than that prescribed by law shall be
imposed, but always in the proper period. (As amended by
Rep. Act No. 9344)
b. Art. 69. Penalty to be imposed when the crime committed is
not wholly excusable. — A penalty lower by one or two
degrees than that prescribed by law shall be imposed if the
deed is not wholly excusable by reason of the lack of some of
the conditions required to
justify the same or to exempt from criminal liability x x x ,
provided that the majority of such conditions be present.
Classes
249
c. Art. 64. Rules for the application of penalties which contain
three periods. — In cases in which the penalties prescribed
by law contain three periods, whether it be a single divisible
penalty or composed of three different penalties, each one of
which forms a period x x x, the courts shall observe for the
application of the penalty the following rules, according to
whether there are or are not mitigating or aggravating
circumstances:
XXX.
(5) When there are two or more mitigating

circumstances and no aggravating circumstances are
present, the court shall impose the penalty next lower to
that prescribed by law, in the period that it may deem
applicable, according to the number and nature of such
circumstances.
X x x.
Privileged mitigating circumstances applicable only to

particular crimes.
1. Voluntary release of the person illegally detained within 3 days
without the offender attaining his purpose and before the
institution of criminal action. (Art. 268, par. 3) The penalty is one
degree lower.
2. Abandonment without justification of the spouse who committed
adultery. (Art. 333, par. 3) The penalty is one degree lower.
Distinctions.
1. Ordinary mitigating is susceptible of being offset by any
aggravating circumstance; while privileged mitigating cannot be
offset by aggravating circumstance.
2. Ordinary mitigating, if not offset by an aggravating circumstance,
produces only the effect of applying the penalty provided by law
for the crime in its minimum
period, in case of divisible penalty; whereas, privileged mitigating
produces the effect of imposing upon the
Distinctions Between Ordinary and Privileged
offender the penalty lower by one or two degrees than that

provided by law for the crime.
250
People vs. Honradez
(C.A., 40 O.G., Supp. 4, 1)
Facts: The accused who was charged with robbery was less than 18 years
old. He committed the crime during nighttime purposely sought, which is an
aggravating circumstance.
Held: The aggravating circumstance of nighttime cannot offset the

privileged mitigating circumstance of minority.
Note: As to whether the age 16 years or above but under 18 years is a
privileged mitigating circumstance is not a settled question.
Mitigating circumstances only reduce the penalty, but do

not change the nature of the crime.
Where the accused is charged with murder, as when treachery as a
qualifying circumstance is alleged in the information, the fact that there is a
generic or privileged mitigating circumstance does not change the felony to
homicide.
If there is an ordinary or generic mitigating circumstance, not offset by
any aggravating circumstance, the accused should be found guilty of the same
crime of murder, but the penalty to be imposed is reduced to the minimum of
the penalty for murder.
If there is a privileged mitigating circumstance, the penalty for murder
will be reduced by one or two degrees lower.
In every case, the accused should be held guilty of murder.
The judgment of the trial court that the mitigating circumstance of non-
habitual drunkenness changes the felony to homicide is erroneous, because
treachery is alleged in the information and the crime committed by the
appellant is that of murder. The mitigating circumstance reduces the penalty
provided by law but does not change the nature of the crime. (People vs.
Talam, C.A., 56 O.G. 3654)
251
Chapter Three
CIRCUMSTANCES WHICH MITIGATE CRIMINAL
LIABILITY
Art. 13. Mitigating circumstances. — The following are mitigating

circumstances:
1. Those mentioned in the preceding chapter, w h e n all the requisites
necessary to justify the act or to exempt from criminal liability in the
respective cases are not attendant.
2. That the offender is under eighteen years of age or over seventy years.
In the case of the minor, he shall be proceeded against in accordance with the
provisions of Article 80.*
3. That the offender had no intention to commit so grave a w r o n g as
that committed.
4. That sufficient provocation or threat on the part of the offended party
immediately preceded the act.
5. T h a t t h e act w a s c o m m i t t e d in t h e i m m e d i a t e
vindication of a grave offense to the one committing the felony (delito), his
spouse, a s c e n d a n t s , d e s c e n d a n t s , legitimate, natural or adopted
brothers or sisters, or relatives by affinity within the same degrees.
6. That of having acted upon an impulse so powerful as naturally to have
produced passion or obfuscation.
7. That the offender h a d voluntarily surrendered himself to a person in
authority or his agents, or that he had voluntarily confessed his guilt before
the court prior to the presentation of the evidence for the prosecution.
•"Impliedly repealed by Rep. Act. No. 9344. A child above 15 but below 18 who acted
without discernment may be exempt from criminal liability.
253
Par. 1
8. That the offender is deaf and dumb, blind, or otherwise suffering

some physical defect which thus restricts his means of action, defense, or
communication with his fellow beings.
9. Such illness of the offender as would diminish the exercise of the will-
power of the offender without however depriving him of consciousness of his
acts.
10. And, finally, any other circumstances of a similar nature and
analogous to those above-mentioned.
Par. 1. — Those mentioned in the preceding chapter when all the

requisites necessary to justify the act or to exempt from
criminal liability in the respective cases are not
attendant.
"Those mentioned in the preceding chapter."

This clause has reference to (1) justifying circumstances, and (2)
exempting circumstances which are covered by Chapter Two of Title One.
Circumstances of justification or exemption which may

give place to mitigation.
The circumstances of justification or exemption which may give place to
mitigation, because not all the requisites necessary to justify the act or to
exempt from criminal liability in the respective cases are attendant, are the
following:
(1) Self-defense (Art. 11, par. 1);

(2) Defense of relatives (Art. 11, par. 2);
(3) Defense of stranger (Art. 11, par. 3);
(4) State of necessity (Art. 11, par. 4);
(5) Performance of duty (Art. 11, par. 5);
(6) Obedience to order of superior (Art. 11, par. 6);
(7) Minority over 9 and under 15 years of age (Art. 12, par.
3);
Incomplete Justifying or Exempting Circumstances Par. 1
(8) Causing injury by mere accident (Art. 12, par. 4); and
(9) Uncontrollable fear. (Art. 12, par. 6)
253
Incomplete Justifying or Exempting Circumstances
Paragraphs 1 and 2 of Article 12 cannot give place to mitigation,
because, as stated by the Supreme Court of Spain, the mental condition of a
person is indivisible; that is, there is no middle ground between sanity and
insanity, between presence and absence of intelligence.
(Decs, of Sup. Ct. of Spain of December 19, 1891 and of October 3, 1884)
But if the offender is suffering from some illness which would diminish
the exercise of his will-power, without however depriving him of consciousness
of his acts, such circumstance is considered a mitigation under paragraph 9 of
Article 13. It would seem that one who is suffering from mental disease
without however depriving one of consciousness of one's act may be given the
benefit of that mitigating circumstance.
When all the requisites necessary to justify the act are not
attendant.
1. Incomplete self-defense, defense of relatives, and
defense of stranger.
Note that in these three classes of defense, unlawful aggression
must be present, it being an indispensable requisite. What is absent is
either one or both of the last two requisites.
Paragraph 1 of Art. 13 is applicable only when unlawful

aggression is present but the other two requisites are not
present in any of the cases referred to in circumstances
Nos. 1,2 and 3 of Art. 11.
Art. 13, par. 1, applies only when unlawful aggression is present, but the
other two requisites are not present. (Guevara)
When two of the three requisites mentioned therein are present
(for example, unlawful aggression and any one of the other two), the case
must not be considered as one in which an ordinary or generic mitigating
circumstance is present. Instead, it should be considered a privileged
mitigating circumstance referred to in Art. 69 of this Code.
Par. 1
Thus, if in self-defense there was unlawful aggression on the part of the

deceased, the means employed to prevent or repel it was reasonable, but the
one making a defense gave sufficient provocation, he is entitled to a privileged
mitigating circumstance, because the majority of the conditions required to
justify the act is present. (Art. 69) Also, if in the defense of a relative there was
unlawful aggression on the part of the deceased, but the one defending the
254
relative used unreasonable means to prevent or repel it, he is entitled to a
privileged mitigating circumstance.
When there is unlawful aggression on the part of the deceased without
sufficient provocation by the defendant, but the latter uses means not
reasonably necessary, for after having snatched the rope from the deceased, he
should not have wound it around her neck and tightened it. Held: There is
incomplete self-defense on the part of the defendant, which may be considered
a privileged mitigating circumstance. (People vs. Martin, 89 Phil. 18, 24)
But if there is no unlawful aggression, there could be no selfdefense or
defense of a relative, whether complete or incomplete.
Example of incomplete defense.

The deceased was about to set on fire the house of the accused,
where she was sleeping together with her two children. They grappled
and the accused boloed to death the deceased. There was unlawful
aggression consisting in trying to set on fire the house of the accused.
There was the element of danger to the occupants of the house. But
having already driven the aggressor out of the house, who was prostrate
on the ground, the accused should not have persisted in wounding her no
less than fourteen times. There is, therefore, absence of one circumstance
to justify the act—reasonable necessity of killing the aggressor. The
accused was entitled to a privileged mitigating circumstance of
incomplete defense. Here, the accused acted in defense of her person, her
home, and her children. (U.S. vs. Rivera, 41 Phil. 472, 473-474)
Example of incomplete self-defense.

The accused is entitled to only incomplete self-defense. The
deceased was in a state of drunkenness, so he was not as dangerous as he
would if he had been sober. His aim proved MITIGATING
faulty and easily evaded as shown by the fact that the person defending
was not hit by the stab attempts-blows directed against him. The
necessity of the means used to repel the aggression is not clearly
reasonable. (People vs. De Jesus, No. L-58506, Nov. 19, 1982, 118 SCRA
616, 627)
Example of incomplete defense of relative.

The deceased hit the first cousin of the accused with the butt of a
shotgun. The deceased also pointed the shotgun at the first cousin, took a
255
bullet from his jacket pocket, showed it to him and asked him, "Do you
like this, Dong?" to which the latter replied, "No, Noy, I do not like
that." The deceased then placed the bullet in the shotgun and was thus
pointing it at the first cousin when the accused came from behind the
deceased and stabbed him. There was unlawful aggression on the part of
the deceased and there was no provocation on the part of the accused.
However, because of a running feud between the deceased and his
brother on one side and the accused and his brother on the other side,
the accused could not have been impelled by pure compassion or
beneficence or the lawful desire to avenge the immediate wrong inflicted
on his cousin. He was motivated by revenge, resentment or evil motive.
He is only entitled to the privileged mitigating circumstance of
incomplete defense of relative. (People vs. Toring, G.R. No. 56358, Oct.
26, 1990, 191 SCRA 38, 45-48)
2. Incomplete justifying circumstance of avoidance of greater evil or injury.
Avoidance of greater evil or injury is a justifying circumstance if
all the three requisites mentioned in paragraph 4 of Article 11 are
present. But if any of the last two requisites is absent, there is only a
mitigating circumstance.
3. Incomplete justifying circumstance of performance of duty.
As has been discussed under Article 11, there are two requisites
that must be present in order that the circumstance in Article 11, No. 5,
may be taken as a justifying one, namely:
a. That the accused acted in the performance of a duty or in the
lawful exercise of a right or office; and
Par. 1
b. That the injury caused or offense committed be the necessary

consequence of the due performance of such duty or the lawful
exercise of such right or office.
In the case of People vs. Oanis, supra, where only one of the requisites of
circumstance No. 5 of Art. 11 was present, Art. 69 was applied. The Supreme
Court said —
"As the deceased was killed while asleep, the crime committed is
murder with the qualifying circumstance oialevosia. There is, however, a
mitigating circumstance of weight consisting in the incomplete justifying
circumstance defined in Art. 11, No. 5, of the Revised Penal Code.
According to such legal provision, a person incurs no criminal liability
when he acts in the fulfillment of a duty or in the lawful exercise of a
256
right or office. There are two requisites in order that the circumstance
may be taken as a justifying one: (a) that the accused acted in the
performance of a duty or in the lawful exercise of a right or office; and
(b) that the injury caused or offense committed be the necessary
consequence of the due performance of such duty or the lawful exercise
of such right or office. In the instant case, only the first requisite is
present—appellants have acted in the performance of a duty. The second
requisite is wanting for the crime committed by them is not the necessary
consequence of a due performance of their duty. Their duty was to arrest
Balagtas, or to get him dead or alive if resistance is offered by him and
they are overpowered. But through impatience or over anxiety or in their
desire to take no chances, they have exceeded in the fulfillment of such
duty by killing the person whom they believed to be Balagtas without any
resistance from him and without making any previous inquiry as to his
identity. According to Art. 69 of the Revised Penal Code, the penalty
lower by one or two degrees than that prescribed by law shall, in such
case, be imposed.
"For all the foregoing, the judgment is modified and appellants are
hereby declared guilty of murder with the mitigating circumstance above
mentioned, and accordingly sentenced to an indeterminate penalty of
from five (5) years of prision correccional to fifteen (15) years of reclusion
temporal, with the accessories of the law, and to pay the heirs of the
deceased Serapio Tecson, jointly and severally, an indemnity of P2,000,
with costs."
Since the Supreme Court considered one of the two requisites as

constituting the majority, it seems that there is no ordinary mitigating
circumstance under Art. 13, par. 1, when the justifying or exempting
circumstance has two requisites only.
4. Incomplete justifying circumstance of obedience to an order.

Roleda fired at Pilones, following the order of Sergeant Benting,
Roleda's superior. It appears that on their way to the camp, Roleda
learned that Pilones had killed not only a barrio lieutenant but also a
member of the military police, and this may have aroused in Roleda a
feeling of resentment that may have impelled him to readily and without
questioning follow the order of Sgt. Benting. To this may be added the
fact of his being a subordinate of Sgt. Benting who gave the order, and
while out on patrol when the soldiers were supposed to be under the
257
immediate command and control of the patrol leader, Sgt. Benting.
(People vs. Bernal, et al., 91 Phil. 619)
When all the requisites necessary to exempt from criminal

liability are not attendant.
1. Incomplete exempting circumstance of minority over 9 and under 15
years of age.
To be exempt from criminal liability under paragraph 3 of Article
12, two conditions must be present:
a. That the offender is over 9 and under 15 years old; and
b. That he does not act with discernment.

Therefore, if the minor over 9 and under 15 years of age acted
with discernment, he is entitled only to a mitigating circumstance,
because not all the requisites necessary to exempt from criminal liability
are present.
The case of such minor is specifically covered by Art. 68.
2. Incomplete exempting circumstance of accident.

Under paragraph 4 of Article 12, there are four requisites that
must be present in order to exempt one from criminal liability, namely:
Par. 1
a. A person is performing a lawful act;

b. With due care;
c. He causes an injury to another by mere accident; and
d. Without fault or intention of causing it.
If the second requisite and the 1st part of the fourth requisite are
absent, the case will fall under Art. 365 which punishes a felony by
negligence or imprudence.
In effect, there is a mitigating circumstance, because the penalty is
lower than that provided for intentional felony.
If the first requisite and the 2nd part of the fourth requisite are
absent, because the person committed an unlawful act and had the
intention of causing the injury, it will be an intentional
felony. The 2nd and 3rd requisites will not be present either.
258
In this case, there is not even a mitigating circumstance.
3. Incomplete exempting circumstance of uncontrollable fear.

Under paragraph 6 of Article 12, uncontrollable fear is an
exempting circumstance if the following requisites are present:
a. That the threat which caused the fear was of an evil greater than,
or at least equal to, that which he was required to commit;
b. That it promised an evil of such gravity and imminence that an
ordinary person would have succumbed to it (uncontrollable).
If only one of these requisites is present, there is only a mitigating
circumstance.
Illustration:
People vs. Magpantay

(C.A., 46 O.G. 1655)
Facts: In the night of May 8, 1947, Felix and Pedro took turns to guard, so
that when one was asleep the other was awake. At about nine o'clock when
Pedro was asleep, the silhouette of a man passed in
259
front of their house without any light. The night was dark and it was drizzling.
The coconut trees and the bushes on the sides of the road increased the
darkness. When Felix saw the silhouette, he asked it who it was, but it walked
hurriedly, which made Felix suspicious as it might be a scouting guard of the
Dilim gang. Felix fired into the air,
yet the figure continued its way.
When Pedro heard the shot, he suddenly grabbed the rifle at his side
and fired at the figure on the road, causing the death of the man. This man
was afterward found to be Pedro Pinion, who was returning home unarmed
after fishing in a river.
The accused voluntarily surrendered to the barrio-lieutenant and then
to the chief of police.
Held: The accused acted under the influence of the fear of being
attacked. Having already in his mind the idea that they might be raided at any
moment by the Dilim gang and suddenly awakened by the shot fired by Felix,
he grabbed his gun and fired before he could be fired upon. The fear, however,
was not entirely uncontrollable, for had he not been so hasty and had he
stopped a few seconds to think, he would have ascertained that there was no
imminent danger.
He is entitled to the mitigating circumstance of grave fear, not entirely
uncontrollable, under paragraph 1 of Article 13 in connection with paragraph
6 of Article 12 of the Revised Penal Code. That said two provisions may be
taken together to constitute a mitigating circumstance has been declared by
the Supreme Court of Spain in its decision of February 24, 1897 and by
Groizard. (Codigo Penal, Vol. I, pp. 370-372, Third Edition)
Consequently, there are two marked mitigating circumstances in favor
of the accused. Article 64, in paragraph 5, of the Revised Penal Code provides
that: "When there are two or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the penalty next
lower to that prescribed by law, in the period that it may deem applicable,
according to the number and nature of such circumstances." The penalty for
homicide is reclusion temporal. The next lower penalty is prision mayor, which
may be imposed in the period that the court may deem applicable according to
the number and nature of such circumstance.
In view of the foregoing, this Court finds the accused Pedro
Magpantay guilty of homicide, with two very marked mitigating
circumstances, and modifies the judgment appealed from by imposing upon
him the penalty of from six (6) months and one (1) day of prision correccional to
six (6) years and one (1) day of prision mayor.
261
Under Eighteen or Over Seventy Years Old
With due respect, it is believed that Art. 69, in connection with

paragraph 6 of Article 12, not Article 13, paragraph 1, in relation to
paragraph 6 of Article 12, should be applied.
When it considered grave fear, not entirely uncontrollable, as ordinary
mitigating circumstance under Article 13, paragraph 1, together with
voluntary surrender, and applied Article 64, the Court of Appeals should have
fixed the maximum term of the indeterminate penalty (prision mayor) in its
medium period. The two mitigating circumstances having been considered
already for the purpose of lowering the penalty for homicide by one degree,
pursuant to paragraph 5 of Article 64, there is no mitigating circumstance that
will justify the imposition of prision mayor in its minimum period.
Had Article 69 in connection with paragraph 6 of Article 12 been
applied, the penalty imposed would have a correct basis. Under Article 69, the
penalty one or two degrees lower than that provided for the offense may be
imposed. The mitigating circumstance of voluntary surrender need not be
considered in lowering the penalty by one degree. Therefore, the voluntary
surrender of the accused, which is a generic mitigating circumstance, may be
considered for the purpose of fixing prision mayor in its minimum period. (Art.
64, par. 2)
Par. 2. — That the offender is under eighteen years of age or over seventy
years. In the case of the minor, he shall be proceeded against
in accordance with the provisions of Article 80 (now Art. 192,
P.D. No. 603).
Paragraph 2, Article 13 RPC impliedly repealed by

Republic Act No. 9344.
Paragraph 2, Article 13 of the Revised Penal Code providing that
offender under eighteen years of age is entitled to a mitigating circumstance of
minority is deemed repealed by the provision of Republic Act 9344 declaring a
child above fifteen (15) years but below eighteen years (18) or age shall be
exempt from criminal liability unless he/she has acted with discernment. (Sec.
6, Rep. Act No. 9344)
In other words, whereas before, an offender fifteen (15) or over but
under eighteen (18) years of age is entitled only to the benefits provided under
Article 68 of the Revised Penal Code, under Republic
Under Eighteen or Over Seventy Years Old Par. 2
261
Par. 2
Act No. 9344 or the "Juvenile Justice and Welfare Act of 2006," such offender
may be exempt from criminal liability should he/she acted without
discernment.
On the other hand, if such offender acted with discernment, such child
in conflict with the law shall undergo diversion programs provided under
Chapter 2 of Republic Act No. 9344.
Meaning of Diversion and Diversion Program under

Republic
Act No. 9344
"Diversion" refers to an alternative, child-appropriate process of
determining the responsibility and treatment of a child in conflict with the law
on the basis of his/her social, cultural, economic, psychological, or educational
background without resulting to formal court proceedings. (Section 4[j], Rep.
Act No. 9344)
"Diversion Program" refers to the program that the child in conflict
with the law is required to undergo after he/she is found responsible for an
offense without resorting to formal court proceedings. (Section 4(j], Rep. Act
No. 9344)
System of Diversion.
Children in conflict with the law shall undergo diversion programs
without undergoing court proceedings subject to the following conditions:
(a) Where the imposable penalty for the crime committed is not
more than six (6) years imprisonment, the law enforcement office or Punong
Barangay with the assistance of the local social welfare and development
officer or other members of the Local Councils for the Protection of Children
(LCPC) established in all levels of local government pursuant to Rep. Act No.
9344, shall conduct mediation, family conferencing and conciliation and,
where appropriate, adopt indigenous modes of conflict resolution in
accordance with the best interest of the child with a view to accomplishing the
objectives of restorative justice and the formulation of a diversion program.
The child and his/her family shall be present in these activities.
(b) In victimless crimes where the imposable penalty is not more
than six (6) years of imprisonment, the local social welfare and development
officer shall meet with the child and his/her parents or guardians for the
development of the appropriate diversion and
rehabilitation program, in coordination with the Barangay Council for the

Protection of Children (BCPC) created pursuant to Rep. Act No. 9344.
262
(c) Where the imposable penalty for the crime committed exceeds six (6)
years imprisonment, diversion measures may be resorted to only by the court.
(See Section 23, Republic Act No. 9344)
Conferencing, Mediation and Conciliation.

A child in conflict with the law may undergo conferencing, mediation or
conciliation outside the criminal justice system or prior to his entry into said
system. A contract of diversion may be entered into during such conferencing,
mediation or conciliation proceedings. (Sec. 25, Rep. Act No. 9344) Contract
of Diversion.
If during the conferencing, mediation or conciliation, the child
voluntarily admits the commission of the act, a diversion program shall be
developed when appropriate and desirable as determined under Section 30.
Such admission shall not be used against the child in any subsequent judicial,
quasi-judicial or administrative proceedings. The diversion program shall be
effective and binding if accepted by the parties concerned. The acceptance
shall be in writing and signed by the parties concerned and the appropriate
authorities. The local social welfare and development officer shall supervise
the implementation of the diversion program. The diversion proceedings shall
be completed within forty-five (45) days. The period of prescription of the
offense shall be suspended until the completion of the diversion proceedings
but not to exceed forty-five (45) days.
The child shall present himself/herself to the competent authorities that
imposed the diversion program at least once a month for reporting and
evaluation of the effectiveness of the program.
Failure to comply with the terms and conditions of the contract of
diversion, as certified by the local social welfare and development officer, shall
give the offended party the option to institute the appropriate legal action.
The period of prescription of the offense shall be suspended during the
effectivity of the diversion program, but not exceeding a period of two (2)
years. (Sec. 26, Rep. Act No. 9344)
Under Eighteen or Over Seventy Years Old Par. 2
Where diversion may be conducted.
Diversion may be conducted at the Katarungang Pambarangay, the
police investigation or the inquest or preliminary investigation stage and at all
levels and phases of the proceedings including judicial level. (Section 24,
Republic Act No. 9344)
Duty of the Punong Barangay or the Law Enforcement

Officer when there is no diversion.
263
Par. 2
If the offense does not fall under the category where the imposable
penalty for the crime committed is not more than six (6) years of
imprisonment or in cases of victimless crimes where the imposable penalty is
also not more than six years imprisonment, or if the child, his/her parents or
guardians does not consent to a diversion, the Punong Barangay handling the
case shall, within three (3) days from determination of the absence of
jurisdiction over the case or termination of the diversion proceeding as the
case may be, forward the records of the case to the law enforcement officer,
prosecutor or the appropriate court, as the case may be. (See Section 27,
In case a Law Enforcement Officer is the one handling the case, within
same period, the Law Enforcement Officer shall forward the records of the
case to the prosecutor or judge concerned for the conduct of inquest and/or
preliminary investigation. The document transmitting said records shall
display the word "CHILD" in bold letters. (Sec. 28, Rep. Act No. 9344)
Determination of age of child in conflict with the law.

The child in conflict with the law shall enjoy the presumption of
minority. He/She shall enjoy all the rights of a child in conflict with the law
until he/she is proven to be eighteen (18) years old or older. The age of a child
may be determined from the child's birth certificate, baptismal certificate or
any other pertinent documents. In the absence of these documents, age may be
based on information from the child himself/herself, testimonies of other
persons, the physical appearance of the child and other relevant evidence. In
case of doubt as to the age of the child, it shall be resolved in his/her favor.
Any person contesting the age of the child in conflict with the law prior
to the filing of the information in any appropriate court may file
a case in a summary proceeding for the determination of age before the

Family Court which shall decide the case within twenty-four (24) hours from
receipt of the appropriate pleadings of all interested parties.
If a case has been filed against the child in conflict with the law and is
pending in the appropriate court, the person shall file a motion to determine
the age of the child in the same court where the case is pending. Pending
hearing on the said motion, proceedings on the main case shall be suspended.
In all proceedings, law enforcement officers, prosecutors, judges and
other government officials concerned shall exert all efforts at determining the
age of the child in conflict with the law. (Section 7, Republic Act No. 9344)
That the offender is over 70 years of age is only a generic

mitigating circumstance.
264
While paragraph 2 of Article 13 covers offenders under 18 years of age
and those over 70 years, Article 68, providing for privileged mitigating
circumstances, does not include the case of offenders over 70 years old.
Prior to the enactment of Rep. Act No. 9346 prohibiting the imposition
of the death penalty, there were two cases where the fact that the offender is
over 70 years of age had the effect of a privileged mitigating circumstance,
namely: (1) when he committed an offense punishable by death, that penalty
shall not be imposed (Art. 47, par. 1) and (2) when the death sentence is
already imposed, it shall be suspended and commuted. (Art. 83)
In any of the above-mentioned two cases, the penalty of death will have
to be lowered to life imprisonment (reclusion perpetua).
The mitigating circumstances in paragraph 2 of Art. 13 are based on the
diminution of intelligence, a condition of voluntariness.
No Intention to Commit So Grave A Wrong Par. 3
Par. 3. — That the offender had no intention to commit so grave a wrong
as that committed.
Rule for the application of this paragraph.

This circumstance can be taken into account only when the facts proven
show that there is a notable and evident disproportion between the means
employed to execute the criminal act and its consequences.
(U.S. vs. Reyes, 36 Phil. 904, 907)
Illustrations:
1. The husband who was quarreling with his wife punched her in the
abdomen, causing the rupture of her hypertrophied spleen, from
which she died. (People vs. Rabao, 67 Phil. 255, 257, 259)
2. The accused confined himself to giving a single blow with a bolo
on the right arm of the victim and did not repeat the blow. The
death of the victim was due to neglect and the lack of medical
treatment, his death having resulted from hemorrhage which
those who attended to him did not know how to stop or control in
time. (U.S. vs. Bertucio, 1 Phil. 47, 49)
3. The accused, a policeman, boxed the deceased, a detention
prisoner, inside the jail. As a consequence of the fistic blows, the
deceased collapsed on the floor. The accused stepped on the
prostrate body and left. After a while, he returned with a bottle,
poured its contents on the recumbent body of the deceased, ignited
265
Par. 2
it with a match and left the cell again. As a consequence, the
victim later on died. Held: The accused is entitled to the mitigating
circumstance of "no intention to commit so grave a wrong as that
committed."
(People vs. Ural, No. L-30801, March 27, 1974, 56 SCRA 138, 140-
141, 146)
Intention, being an internal state, must be judged by

external acts.
The intention, as an internal act, is judged not only by the proportion
of the means employed by him to the evil produced by his act, but also by the
fact that the blow was or was not aimed at a vital part of the body.
266
Thus, it may be deduced from the proven facts that the accused had no
intent to kill the victim, his design being only to maltreat him, such that when
he realized the fearful consequences of his felonious act, he allowed the victim
to secure medical treatment at the municipal dispensary. (People vs. Ural, No.
L-30801, March 27, 1974, 56 SCRA 138, 146)
Thus, where the accused fired a loaded revolver at the deceased and
killed him, it must be presumed, taking into consideration the means
employed as being sufficient to produce the evil which resulted, that he
intended the natural consequence of his act and he is, therefore, not entitled to
the benefit of the mitigating circumstance of lack of intention to commit a
wrong as that committed. (U.S. vs.
Fitzgerald, 2 Phil. 419, 422)
Thus, where at the time of the commission of the crime, the accused was
32 years of age, while his victim was 25 years his senior, and when the latter
resisted his attempt to rape her by biting and scratching him, to subdue her,
the accused boxed her and then held her on the neck and pressed it down,
while she was lying on her back and he was on top of her, these acts were
reasonably sufficient to produce the result that they actually produced—the
death of the victim. (People vs. Amit, No. L-29066, March 25,1970, 32 SCRA
95, 98)
So also, when the assailant, armed with a bolo, inflicted upon his victim
a serious and fatal wound in the abdomen, it is not to be believed that he had
no intention of killing his victim, having clearly shown, by the location of the
wound, that he had a definite and perverse intention of producing the injury
which resulted. (U.S. vs.
Mendac, 31 Phil. 240, 244-245)
Defendant alleged as mitigating circumstance that he did not intend to
commit so grave an injury. Held: The plea is groundless; he used a knife six
inches long. The fatal injury was the natural and almost inevitable
consequence. Moreover, he attempted to stab a second time but was prevented
from doing so. (People vs. Orongan,
et al, 58 Phil. 426, 429)
The weapon used, the part of the body injured, the injury
inflicted, and the manner it is inflicted may show that the
accused intended the wrong committed.
1. Intention must be judged by considering the weapon used, the injury
inflicted, and his attitude of the mind when the
Par. 3 No Intention to Commit So Grave A Wrong
accused attacked the deceased. Thus, when the accused used a heavy club
in attacking the deceased whom he followed some distance, without giving
him an opportunity to defend himself, it is to be believed that he intended
to do exactly what he did and must be held responsible for the result,
without the benefit of this mitigating circumstance. (People vs. Flores, 50
Phil. 548, 551)
2. When a person stabs another with a lethal weapon such as a fan knife
(and the same could be said of the butt of a rifle), upon a part of the body,
for example, the head, chest, or stomach, death could reasonably be
anticipated and the accused must be presumed to have intended the
natural consequence of his wrongful act. (People vs. Reyes, 61 Phil. 341,
343; People vs. Datu Baguinda, 44 O.G. 2287)
3. The weapon used, the force of the blow, the spot where the blow was
directed and landed, and the cold blood in which it was inflicted, all tend
to negative any notion that the plan was anything less than to finish the
intended victim. The accused in this case struck the victim with a
hammer on the right forehead. (People vs. Banlos, G.R. No. L-3412, Dec.
29, 1950)
4. As to the alleged lack of intent to commit so grave a wrong as that
committed, the same cannot be appreciated. The clear intention of the
accused to kill the deceased may be inferred from the fact that he used a
deadly weapon and fired at the deceased almost point blank, thereby
hitting him in the abdomen and causing death. (People vs. Reyes, No. L-
33154, Feb. 27, 1976, 69 SCRA 474, 482)
5. Where the evidence shows that, if not all the persons who attacked the
deceased, at least some of them, intended to cause his death by throwing
at him stones of such size and weight as to cause, as in fact they caused, a
fracture of his skull, and as the act of one or some of them is deemed to
be the act of the others there being sufficient proof of conspiracy, the
mitigating circumstance of lack of intent to commit so grave a wrong as
the one actually committed cannot favorably be considered. (People vs.
Bautista, Nos. L-23303-04, May 20, 1969, 28 SCRA 184,190-191; People
269
vs. Espejo, No. L-27708, Dec. 19, 1970, 36 SCRA 400, 424)
Inflicting of five stab wounds in rapid succession negates pretense of lack of

intention to cause so serious an injury.
The inflicting by the accused of five (5) stab wounds caused in rapid
succession brings forth in bold relief the intention of the accused to snuff out
the life of the deceased, and definitely negates any pretense of lack of intention
268
to cause so serious an injury. (People vs. Brana, No. L-29210, Oct. 31, 1969, 30
SCRA 307, 316)
Art. 13, par. 3, is not applicable when the offender

employed brute force.
To prove this circumstance, the accused testified that "my only intention
was to abuse her, but when she tried to shout, I covered her mouth and
choked her and later I found out that because of that she died." The Supreme
Court said: "It is easy enough for the accused to say that he had no intention
to do great harm. But he knew the girl was very tender in age (6 years old),
weak in body, helpless and defenseless. He knew or ought to have known the
natural and inevitable result of the act of strangulation, committed by men of
superior strength, specially on an occasion when she was resisting
the onslaught upon her honor. The brute force employed by the appellant,
completely contradicts the claim that he had no intention to kill the victim."
(People vs. Yu, No. L-13780, Jan. 28, 1961, 1 SCRA 199,204)
It is the intention of the offender at the moment when he is committing the crime
which is considered.
The point is raised that the trial court should have considered the
mitigating circumstance of lack of intent to commit so grave a wrong as that
committed. The argument is that the accused planned only to rob; they never
meant to kill. Held: Art. 13, par. 3, of the Revised Penal Code addresses itself
to the intention of the offender at the particular moment when he executes or
commits the criminal act; not to his intention during the planning stage.
Therefore, when, as in the case under review, the original plan was only to
rob, but which plan, on account of the resistance offered by the victim, was
compounded into the more serious crime of robbery with homicide,
the plea of lack
of intention to
commit so grave a wrong cannot be rightly granted. The irrefutable fact
remains that when they ganged up on their victim, they employed deadly
weapons and inflicted on him mortal wounds in his neck. At that precise
moment, they did intend to kill their victim, and that was the moment to
which Art. 13, par. 3, refers. (People vs. Boyles, No. L-15308, May 29,1964,11
SCRA 88, 95-96; People vs. Arpa, No. L-26789, April 25, 1969, 27 SCRA 1037,
1045-1046)
Art. 13, par. 3 of the Revised Penal Code "addresses itself to the
intention of the offender at the particular moment when he executes or
commits the criminal act; not to his intention during the planning stage."
Therefore, if the original plan, as alleged by the accused, was merely to ask for
forgiveness from the victim's wife who scolded them and threatened to report
them to the authorities, which led to her killing, the plea of lack of intention to
commit so grave a wrong cannot be appreciated as a mitigating circumstance.
The records show that the accused held the victim's wife until she fell to the
floor, whereupon they strangled her by means of a piece of rope tied around
her neck till she died. The brute force employed by the accused completely
contradicts the claim that they had no intention to kill the victim.
(People vs. Garachico, No. L-30849, March 29,1982,113 SCRA 131,
152)
Lack of intention to commit so grave a wrong mitigating in

robbery with homicide.
The mitigating circumstance of lack of intent to commit so grave a
wrong may be appreciated favorably in robbery with homicide, where it has
not been satisfactorily established that in forcing entrance through the door
which was then closed, with the use of pieces of wood, the accused were aware
that the deceased was behind the door and would be hurt, and there is no clear
showing that they ever desired to kill the deceased as they sought to enter the
house to retaliate against the male occupants or commit robbery. (People vs.
Abueg, No. L-54901, Nov. 24, 1986, 145 SCRA 622, 634)
Appreciated in murder qualified by circumstances based

on manner of commission, not on state of mind of
accused.
Several accused decided to have a foreman beaten up. The deed was
accomplished. But the victim died as a result of hemorrhage. It was not the
intention of the accused to kill the victim. Held: Murder results from the
presence of qualifying circumstances (in this case with premeditation and
270
treachery) based upon the manner in which the crime was committed and not
upon the state of mind of the accused. The mitigating circumstance that the
offender had no intention to commit so grave a wrong as that committed is
based on the state of mind of the offender. Hence, there is no incompatibility
between evident premeditation or treachery, which refers to the manner of
committing the crime, and this mitigating circumstance. (People vs. Enriquez,
58 Phil. 536, 544-545)
Not appreciated in murder qualified by treachery.

Lack of intention to commit so grave a wrong is not appreciated where
the offense committed is characterized by treachery. The five accused claim
that the weapons used are mere pieces of wood, and the fact that only seven
blows were dealt the deceased by the five of them, only two of which turned
out to be fatal, shows that the tragic and grievous result was far from their
minds. The record shows, however, that the offense committed was
characterized by treachery and the accused left the scene of the crime only
after the victim had fallen down. Hence, the mitigating circumstance of lack of
intention cannot be appreciated in their favor. (People vs. Pajenado, No. L-
26458, Jan. 30, 1976, 69 SCRA 172, 180)
Lack of intent to kill not mitigating in physical injuries.

In crimes against persons who do not die as a result of the assault, the
absence of the intent to kill reduces the felony to mere physical injuries, but it
does not constitute a mitigating circumstance under Art. 13, par. 3. (People vs.
Galacgac, C.A., 54
O.G.1207)
Mitigating when the victim dies.

As part of their fun-making, the accused merely intended to set the
deceased's clothes on fire. Burning the clothes of the victim would cause at the
very least some kind of physical injuries on this person. The accused is guilty
of the resulting death of the victim but he is entitled to the mitigating
circumstance of no intention to commit so grave a wrong as that committed.
(People vs. Pugay, No. L-74324,
Nov. 17, 1988, 167 SCRA 439, 449)
Not applicable to felonies by negligence.

In the case of infidelity in the custody of prisoners through negligence
(Art. 224), this circumstance was not considered. (People vs. Medina, C.A., 40
O.G. 4196)
271
The
reason is that in
felonies through negligence, the offender acts without intent. The intent in
intentional felonies is replaced by negligence, imprudence, lack of foresight or
lack of skill in culpable felonies. Hence, in felonies through negligence, there is
no intent on the part of the offender which may be considered as diminished.
Is Art. 13, par. 3, applicable to felonies where the intention

of the offender is immaterial?
In unintentional abortion, where the abortion that resulted is not
intended by the offender, the mitigating circumstance that the offender had no
intention to commit so grave a wrong as that committed is not applicable.
(People vs. Cristobal, C.A., G.R. No.
8739, Oct. 31,1942)
But in another case, where the accused pulled the hair of the
complainant who was three months pregnant causing her to fall on her
buttocks on the cement floor, with the result that after experiencing vaginal
hemorrhage the foetus fell from her womb, it was held that the accused having
intended at the most to maltreat the complainant only, the mitigating
circumstance in Art. 13, par.
3, should be considered in his favor. (People vs. Flameno, C.A., 58
O.G. 4060)
Unintentional abortion is committed by any person who, by violence,
shall cause the killing of the foetus in the uterus or the violent
expulsion of the foetus from the maternal womb, causing its death, but
unintentionally. (Art. 257)
Applicable only to offenses resulting in physical injuries

or material harm.
Thus, the mitigating circumstance that the offender did not intend to
commit so grave a wrong as that committed was not appreciated in cases of
defamation or slander. (People vs. Galang de
Bautista, C.A., 40 O.G. 4473)
272
Par. 4
In this circumstance, intent, an element of voluntariness in intentional
felony, is diminished.
Par. 4. — That sufficient provocation or threat on the part of the offended

party immediately preceded the act.
What is provocation?
By provocation is understood any unjust or improper conduct or act of
the offended party, capable of exciting, inciting, or irritating any one.
Requisites:
1. That the provocation must be sufficient.
2. That it must originate from the offended party.
3. That the provocation must be immediate to the act, i.e., to the

commission of the crime by the person who is provoked.
The provocation must be sufficient.

Provocation in order to be mitigating must be sufficient and
immediately preceding the act. (People vs. Pagal, No. L-32040, Oct. 25,1977,
79 SCRA 570, 575-576)
The word "sufficient" means adequate to excite a person to commit the
wrong and must accordingly be proportionate to its gravity. (People vs.
Nabora, 73 Phil. 434, 435)
As to whether or not a provocation is sufficient depends upon the act
constituting the provocation, the social standing of the person provoked, the
place and the time when the provocation is made.
Examples of sufficient provocation.

1. The accused was a foreman in charge of the preservation of order and
for which purpose he provided himself with a MITIGATING
Provocation or Threat Par. 4
Provocation or Threat
pick handle. The deceased, one of the laborers in the line to receive their
wages, left his place and forced his way into the file. The accused ordered
him out, but he persisted, and the accused gave him a blow with the stick
on the right side of the head above the ear. Held: When the aggression is
in retaliation for an insult, injury, or threat, the offender cannot
successfully claim self-defense, but at most he can be given the benefit of
the mitigating circumstance under the provisions of paragraph 4 of
Article 13. (U.S. vs. Carrero, 9 Phil. 544, 545-546)
2. When the deceased abused and ill-treated the accused by kicking and
cursing the latter, the accused who killed him committed the crime with
this mitigating circumstance.
(U.S. vs. Firmo, 37 Phil. 133, 135)
3. When in his house the accused saw an unknown person jump out of the
window and his wife begged for his pardon on her knees, he killed her.
Such conduct on the part of his wife constitutes a sufficient provocation
to the accused. (People vs. Marquez, 53 Phil. 260, 262-263)
4. Although there was no unlawful aggression, because the challenge was
accepted by the accused, and therefore there was no self-defense, there
was however the mitigating circumstance of immediate provocation. In
this case, the deceased insulted the accused and then challenged the
latter. (U.S. vs. Cortes, 36 Phil. 837)
When the defendant sought the deceased, the challenge to fight by the latter
is not provocation.
Thus, if the defendant appeared in front of the house of the
deceased, after they had been separated by other persons who prevented
a fight between them, even if the deceased challenged him to a fight upon
seeing him near his house, the defendant cannot be given the benefit of
the mitigating circumstance of provocation, because when the defendant
sought the deceased, the former was ready and willing to fight. (U.S. vs.
Mendac, 31 Phil. 240)
5. There was sufficient provocation on the part of the victim where the
latter hit the accused with his fist on the eye of
275
Par. 4
the accused before the fight. (People vs. Manansala, Jr., 31 SCRA
401)
6. The deceased, while intoxicated, found the accused lying down
without having prepared the evening meal. This angered the
274
deceased and he abused the accused by kicking and cursing him.
A struggle followed and the accused stabbed him with a pen knife.
The accused was entitled to the mitigating circumstance that
sufficient provocation or threat immediately preceded the act.
(U.S. vs. Firmo, 37 Phil. 133)
7. The victim's act of kicking the accused on the chest prior to the
stabbing does not constitute unlawful aggression for purposes of
self-defense, but the act may be considered as sufficient
provocation on the victim's part, a mitigating circumstance that
may be considered in favor of the accused. (People vs. Macariola,
No. L-40757, Jan. 24, 1983, 120 SCRA 92, 102)
8. Thrusting his bolo at petitioner, threatening to kill him, and
hacking the bamboo walls of his house are, in our view, sufficient
provocation to enrage any man, or stir his rage and obfuscate his
thinking, more so when the lives of his wife and children are in
danger. Petitioner stabbed the victim as a result of those
provocations, and while petitioner was still in a fit of rage. In our
view, there was sufficient provocation and the circumstance of
passion or obfuscation attended the commission of the offense.
(Romera vs. People,
G.R. No. 151978, July 14, 2004)
Provocation held not sufficient.

(a) When the injured party asked the accused for an explanation for
the latter's derogatory remarks against certain ladies, the accused
cannot properly claim that he was provoked to kill. (People vs.
Laude, 58 Phil. 933)
(b) While the accused was taking a walk at the New Luneta one
evening, the deceased met him and pointing his finger at the
accused asked the latter what he was doing there and then said:
"Don't you know we are watching for honeymooners here?" The
accused drew out his knife and
Provocation or Threat Par. 4
stabbed the deceased who died as a consequence. Held: The

provocation made by the deceased was not sufficient.
(People vs. Nabora, 73 Phil. 434)
(c) The fact that the deceased (a public officer) had ordered the arrest
of the accused for misdemeanor is not such a provocation within
the meaning of this paragraph that will be considered in
mitigation of the penalty for the crime of homicide committed by
the accused who killed the officer giving such order. (U.S. vs.
Abijan, 1 Phil. 83) The performance of a duty is not a source of
provocation.
(d) Assuming for the sake of argument that the blowing of horns,
cutting of lanes or overtaking can be considered as acts of
provocation, the same were not sufficient. The word 'sufficient'
means adequate to excite a person to commit a wrong and must
accordingly be proportionate to its gravity. Moreover, the
deceased's act of asking for the accused to claim that he was
provoked to kill or injure the deceased. (People vs. Court of
Appeals, et. al, G.R. No. 103613, Feb. 23, 2001)
Provocation must originate from the offended party.

Where the alleged provocation did not come from the deceased but from
the latter's mother, the same may not be appreciated in favor of the accused.
(People vs. Reyes, No. L-33154, Feb. 27, 1976, 69 SCRA 474, 481)
A and B were together. A hit C on the head with a piece of stone from
his sling-shot and ran away. As he could not overtake A, C faced B and
assaulted the latter. In this case, C is not entitled to this mitigating
circumstance, because B never gave the provocation or took part in it.
The reason for the requirement is that the law says that the provocation
is "on the part of the offended party."
If during the fight between the accused and another person who
provoked the affair, the deceased merely approached to separate them and did
not give the accused any reason for attacking him, and in attacking the other
person the accused killed the deceased, the provocation given by the other
person cannot be taken as a mitigating circumstance. (U.S. vs. Malabanan, 9
Phil. 262, 264)
Par. 4
276
Difference between sufficient provocation as requisite of
incomplete self-defense and as a mitigating circumstance.
Sufficient provocation as a requisite of incomplete self-defense is
different from sufficient provocation as a mitigating circumstance. As an
element of self-defense, it pertains to its absence on the part of the person
defending himself; while as a mitigating circumstance, it pertains to its
presence on the part of the offended party. (People vs. Court of Appeals, et.
al., G.R. No. 103613, Feb. 23, 2001)
The provocation by the deceased in the first stage of the fight is not a mitigating
circumstance when the accused killed him after he had fled.
The provocation given by the deceased at the commencement of the fight
is not a mitigating circumstance, where the deceased ran away and the
accused killed him while fleeing, because the deceased from the moment he
fled did not give any provocation for the accused to pursue and to attack him.
(People vs. Alconga, 78 Phil. 366, 370)
Provocation must be immediate to the commission of the

crime.
Between the provocation by the offended party and the commission of
the crime by the person provoked, there should not be any interval of time.
The reason for this requirement is that the law states that the
provocation "immediately preceded the act." When there is an interval of
time between the provocation and the commission of the crime, the conduct of
the offended party could not have excited the accused to the commission of the
crime, he having had time to regain his reason and to exercise self-control.
Provocation given by an adversary at the commencement and during
the first stage of a fight cannot be considered as mitigating where the accused
pursued and killed the former while fleeing, and the deceased, from the
moment he had fled after the first stage of the fight to the moment he died, did
not give any provocation for the accused to pursue, much less further attack
him. (People vs. Tan, No. L-22697, Oct. 5, 1976, 73 SCRA 288, 294)
The provocation did not immediately precede the shooting. The accused
had almost a day to mull over the alleged provocation before Provocation or
Threat Par. 4
he reacted by shooting the victim. The inevitable conclusion is that he did not
feel sufficiently provoked at the time the alleged provocation was made, and
when he shot the victim the next day, it was a deliberate act of vengeance and
277
not the natural reaction of a human being to immediately retaliate when
provoked. (People vs. Benito, No. L-32042, Feb. 13, 1975, 62 SCRA 351, 357)
But see the case of People vs. Deguia, et al., G.R. No. L-3731, April
20,1951, where one of the accused, after the provocation by the deceased
consisting in accusing him of having stolen two jack fruits from his tree and
summarily taking them from the sled of the accused, went home
and later returned fully armed and killed the deceased. Yet, it was held that the
provocation should be considered in favor of the accused.
There seems to be a misapplication of the rule in this case. This ruling
would be correct if the accusation that the accused stole the
jack fruits be considered as a grave offense instead of provocation, because an
interval of time between the grave offense and the commission of the crime is
allowed in such a case.
Threat immediately preceded the act.

Thus, if A was threatened by B with bodily harm and because of the
threat, A immediately attacked and injured B, there was a mitigating
circumstance of threat immediately preceding the act.
The threat should not be offensive and positively strong, because, if it is,
the threat to inflict real injury is an unlawful aggression which may give rise
to self-defense. (U.S. vs. Guysayco, 13 Phil. 292, 295-296)
Vague threats not sufficient.

The victim's mere utterance, "If you do not agree, beware," without
further proof that he was bent upon translating his vague threats into
immediate action, is not sufficient.
But where the victims shouted at the accused, "Follow us if you dare
and we will kill you," there is sufficient threat.
The mitigating circumstance in paragraph 4 of Art. 13 is based on the
diminution of intelligence and intent.
278
Vindication of Grave Offense
Art. 13
Par. 5
Par. 5. — That the act was committed in the immediate vindication of a

grave offense to the one committing the
felony (delito), his spouse, ascendants, descendants,
legitimate, natural or adopted brothers or sisters, or relatives
by affinity within the same degrees.
Requisites:
1. That there be a grave offense done to the one committing the
felony, his spouse, ascendants, descendants, legitimate, natural or
adopted brothers or sisters, or relatives by affinity within the
same degrees;
2. That the felony is committed in vindication of such grave offense.
A lapse of time is allowed between the vindication and the doing of
the grave offense.
Illustrations:
1. Being accused by the victim that the accused stole the former's
rooster which made the latter feel deeply embarrassed, and the
encounter took place in about half an hour's time. (People vs.
Pongol, C.A., 66 O.G. 5617, citing People vs. Libria, 95 Phil. 398)
2. Stabbing to death the son of the accused which most naturally and
logically must have enraged and obfuscated him that, seized by
that feeling of hatred and rancour, he stabbed indiscriminately
the people around. (People vs. Doniego, No. L-17321, Nov. 29,
1963, 9 SCRA 541, 546, 547)
A lapse of time is allowed between the grave offense and

the vindication.
The word "immediate" used in the English text is not the correct
translation. The Spanish text uses "proximo." The fact that the accused was
slapped by the deceased in the presence of many persons a few hours before the
former killed the latter, was considered a mitigating circumstance that the act
was committed in the immediate vindication of a grave offense. Although the
grave offense (slapping of the accused by the deceased), which engendered
perturbation of mind, was not so immediate, it was held that the influence
thereof, Par. 5
279
MITIGATING CIRCUMSTANCES
by reason of its gravity and the circumstances under which it was inflicted,
lasted until the moment the crime was committed. (People vs. Parana, 64 Phil.
331, 337)
In the case of People vs. Palaan, G.R. No. 34976, Aug. 15,1931,
unpublished, the killing of the paramour by the offended husband
one day after the adultery was considered still proximate.
In the case of People vs. Diokno, 63 Phil. 601, the lapse of time between
the grave offense (abducting the daughter of the accused by the deceased) and
the vindication (killing of the deceased) was two or three days.
In this case, the Supreme Court said —
"The presence of the fifth mitigating circumstance of Article 13 of
the Revised Penal Code, that is, immediate vindication of a grave offense
. . . may be taken into consideration in favor of the two accused, because
although the elopement took place on January 4, 1935, and the
aggression on the 7th of said month and year, the offense did not cease
while (the abducted daughter's) whereabouts remained unknown and
her marriage to the deceased unlegalized. Therefore, there was no
interruption from the time the offense was committed to the vindication
thereof. (The) accused belongs to a family of old customs to whom the
elopement of a daughter with a man constitutes a grave offense to their
honor and causes disturbance of the peace and tranquility of the home
and at the same time spreads uneasiness and anxiety in the minds of the
members thereof." (p. 608)
Interval of time negating vindication.

1. Approximately nine (9) months before the killing, the deceased boxed
the accused several times in the face resulting in the conviction of the
deceased for less serious physical injuries. He appealed, pending which
the accused killed him. It cannot be said that the second incident was an
immediate or a proximate vindication of the first. (People vs. Lumayag,
No. L-19142, March
31, 1965, 13 SCRA 502, 507-508)
2. The deceased uttered the following remark at eleven o'clock in the
morning in the presence of the accused and his officemates: "Nag-
iistambay pala dito ang magnanakaw." or "Hindi ko alam
Art. 13
Par. 5
280
na itong Civil Service pala ay istambayan ng magnanakaw." At five
o'clock in the afternoon of the same day, the accused killed the
deceased. The mitigating circumstance of vindication of a grave offense
does not avail. (People vs. Benito, No. L-32042, Dec. 17, 1976, 74 SCRA
271, 279, 282-283)
3. Where the accused heard the deceased say that the accused's daughter is
a flirt, and the accused stabbed the victim two months later, the
mitigating circumstance of immediate
vindication of a grave offense cannot be considered in favor of accused
because he had sufficient time to recover his serenity. The supposed
vindication did not immediately or proximately follow the alleged insulting
and provocative remarks. (People vs. Lopez, G.R. No. 136861, November 15,
2000) Distinguish provocation from vindication.
1. In the case of provocation, it is made directly only to the person
committing the felony; in vindication, the grave offense may be
committed also against the offender's relatives mentioned by the law.
2. In vindication, the offended party must have done a grave offense to the
offender or his relatives mentioned by the law; in provocation, the cause
that brought about the provocation need not be a grave offense.
3. In provocation, it is necessary that the provocation or threat
immediately preceded the act, i.e., that there be no interval of time
between the provocation and the commission of the crime; while in
vindication, the vindication of the grave offense may be proximate, which
admits of an interval of time between the grave offense done by the
offended party and the commission of the crime by the accused.
Reason for the difference.

This greater leniency in the case of vindication is due undoubtedly to the
fact that it concerns the honor of a person, an offense which is more worthy of
consideration than mere spite against the one giving the provocation or threat.
Killing a relative is a grave offense.

It was most natural and logical for the appellant to have been enraged
and obfuscated at the sight of his dead son and seized by Par. 5
that feeling of hatred and rancour, to have stabbed indiscriminately the people
around x x x.
On the other hand, the attenuating circumstance of immediate
vindication of a grave offense—the stabbing of his son to death, or of having
281
committed the crime upon an impulse so powerful as naturally to have
produced passion or obfuscation, may be deemed to have attended the
commission of the crime alternatively, because both mitigating circumstances
cannot co-exist. (People vs. Doniego, 9 SCRA 541)
Basis to determine the gravity of offense in vindication.

The question whether or not a certain personal offense is grave must be
decided by the court, having in mind the social standing of the person, the
place, and the time when the insult was made. (See People vs. Ruiz, 93 SCRA
739, where the rule was applied.)
During a fiesta, an old man 70 years of age asked the deceased for some
roast pig. In the presence of many guests, the deceased insulted the old man,
saying: "There is no more. Come here and I will make roast pig of you." A
little later, while the deceased was squatting down, the old man came up
behind him and struck him on the head with an ax. Held: While it may be
mere trifle to an average person, it evidently was a serious matter to an old
man, to be made the butt of a joke in the presence of so many guests. The
accused was given the benefit of the mitigating circumstance of vindication of
a grave offense. (U.S. vs. Ampar, 37 Phil. 201)
In that case, the age of the accused and the place were considered in
determining the gravity of the offense.
Considered grave offense:

1. Sarcastic remark implying that the accused was a petty tyrant.
The offended party, a volunteer worker to repair an
abandoned road, arrived in the afternoon when the work should
have started in the morning. Inquired by the accused, the man in
charge of the work, why he came late, the offended party retorted
sarcastically: "Perhaps during the Spanish regime when one
comes late, he is punished."
282
Par. 5 Vindication of Grave Offense
Infuriated at the reply, the accused fired his gun but did not hit
the offended party. (People vs. Batiquin, C.A., 40
O.G. 987)
2. Remark of the injured party before the guests that accused lived at
the expense of his wife. (People vs. Rosel, 66 Phil. 323) The place
was taken into consideration in that case.
3. Taking into account that the American forces had just occupied
Manila, it is not strange that the accused should have considered it
then as a grave offense when the offended party said: "You are a
Japanese spy." (People vs. Luna, 76 Phil. 101, 105)
The time was taken into consideration in that case.
4. If a person kills another for having found him in the act of
committing an attempt against his (accused's) wife, he is entitled to
the benefits of this circumstance of having acted in vindication of
a grave offense against his and his wife's honor. (U.S. vs. Alcasid,
1 Phil. 86; See also U.S. vs. Davis, 11 Phil. 96, 99)
5. Where the injured party had insulted the father of the accused by
contemptuously telling him: "Phse, ichura mong lalake" (Pshaw,
you are but a shrimp), the accused who attacked the injured party
acted in vindication of a grave offense to his father. (People vs.
David, 60 Phil. 93, 97,103)
The provocation should be proportionate to the damage

caused by the act and adequate to stir one to its
commission.
Aside from the fact that the provocation should immediately precede the
commission of the offense, it should also be proportionate to the damage
caused by the act and adequate to stir one to its commission. The remark
attributed to the deceased that the daughter of the accused is a flirt does not
warrant and justify the act of accused in slaying the victim. (People vs. Lopez,
G.R. No. 136861, November 15, 2000)
The mitigating circumstance in paragraph 5 of Art. 13 is based on the
diminution of the conditions of voluntariness.
Passion or Obfuscation Par. 6
283
Grave offense must be directed to the accused.
The supposed grave offense done by the victim was an alleged remark
made in the presence of the accused that the Civil Service Commission is a
hangout of thieves. The accused felt alluded to because he was facing then
criminal and administrative charges on several counts involving his honesty
and integrity.
The remark itself was general in nature and not specifically directed to
the accused. If he felt alluded to by a remark which he personally considered
insulting to him, that was his own individual reaction thereto. Other people in
the vicinity who might have heard the remark could not have possibly known
that the victim was insulting the accused unless they were aware of the
background of the criminal and administrative charges involving moral
turpitude pending against the accused. The remark cannot be considered a
grave offense against the accused. (People vs. Benito, No. L-32042, Feb.
13,1975, 62 SCRA 351, 355-356)
Vindication of a grave offense incompatible with passion

or obfuscation.
Vindication of a grave offense and passion or obfuscation cannot be
counted separately and independently. (People vs. Dagatan, 106
Phil. 88, 98)
Par. 6. — That of having acted upon an impulse so powerful as naturally

to have produced passion or obfuscation.
This paragraph requires that — 1. The accused

acted upon an impulse.
2. The impulse must be so powerful that it naturally produced passion
or obfuscation in him.
Why passion or obfuscation is mitigating.

When there are causes naturally producing in a person powerful
excitement, he loses his reason and self-control, thereby diminishing the
exercise of his will power. (U.S. vs. Salandanan, 1 Phil. 464, 465)
Par. 6 Passion or Obfuscation
Rule for the application of this paragraph.
284
Passion or obfuscation may constitute a mitigating circumstance only
when the same arose from lawful sentiments.
For this reason, even if there is actually passion or obfuscation on the
part of the offender, there is no mitigating circumstance, when:
(1) The act is committed in a spirit of lawlessness; or

(2) The act is committed in a spirit of revenge.
Requisites of the mitigating circumstance of passion or obfuscation:

1. That there be an act, both unlawful and sufficient to produce such
a condition of mind; and
2. That said act which produced the obfuscation was not far removed
from the commission of the crime by a considerable length of time,
during which the perpetrator might recover his normal
equanimity. (People vs. Alanguilang, 52 Phil. 663, 665, citing
earlier cases; People vs. Ulita, 108 Phil.
730, 743; People vs. Gravino, Nos. L-31327-29, May 16,
1983,122 SCRA 123, 134)
The act of the offended party must be unlawful or unjust.

The crime committed by the accused must be provoked by prior unjust
or improper acts of the injured party. (U.S. vs. Taylor, 6 Phil. 162, 163)
Thus, a common-law wife, who, having left the common home, refused to
go home with the accused, was acting within her rights, and the accused (the
common-law husband) had no legitimate right to compel her to go with him.
The act of the deceased in refusing to go home with the accused, while
provocative, nevertheless was insufficient to produce the passion and
obfuscation that the law contemplates. (People vs. Quijano, C.A., 50 O.G.
5819)
But where the accused killed his wife on the occasion when she visited
her aunt's husband, this mitigating circumstance was held to be applicable,
having in mind the jealousy of the accused and her refusal to return to his
house until after the arrival of her uncle. (U.S.
vs. Ortencio, 38 Phil. 341, 344-345)
The mitigating circumstance of having acted under an impulse so

powerful as to have produced passion and obfuscation should be considered in
285
favor of the owner who, upon seeing the person who stole his carabao, shoots
the supposed thief. (People vs. Ancheta, et
al, C.A., 39 O.G. 1288)
The act of the deceased in creating trouble during the wake of the
departed father of defendant-appellant scandalizes the mourners and offends
the sensibilities of the grieving family. Considering that the trouble created by
the deceased was both unlawful and sufficient to infuriate accused-appellant,
his guilt is mitigated by passion or obfuscation. (People vs. Samonte, Jr., No.
L-31225, June 11, 1975, 64 SCRA 319, 329-330)
The accused is entitled to the mitigating circumstance of passion or
obfuscation where he hit the deceased upon seeing the latter box his 4-year-old
son. The actuation of the accused arose from a natural instinct that impels a
father to rush to the rescue of a beleaguered son, regardless of whether the
latter be right or wrong. (People vs. Castro, No. L-38989, Oct. 29, 1982, 117
SCRA 1014, 1020)
Exercise of a right or fulfillment of duty is not proper

source of passion or obfuscation.
The accused killed the deceased when the latter was about to take the
carabao of the accused to the barrio lieutenant. Held: The action of the
deceased in taking the carabao of the accused to him and demanding payment
for the sugar cane destroyed by that carabao and in taking the carabao to the
barrio lieutenant when the accused refused to pay, was perfectly legal and
proper and constituted no reasonable cause for provocation to the accused.
The finding that the accused acted upon an impulse so powerful as naturally to
have produced passion or obfuscation was not justified, because the
deceased was clearly within his rights in what he did. (People vs.
Noynay, et al, 58 Phil. 393)
Since the mother of the child, killed by the accused, had the perfect right
to reprimand the said accused for indecently converting the family's bedroom
into a rendezvous of herself and her lover, the said accused cannot properly
invoke the mitigating circumstance of passion or obfuscation to minimize her
liability for the murder of the child. (People vs. Caliso, 58 Phil. 283)
Where the accused was making a disturbance on a public street and a

policeman came to arrest him, the anger and indignation of the accused
resulting from the arrest cannot be considered passion or obfuscation, because
the policeman was performing a lawful act. (U.S. vs. Taylor, 6 Phil. 162)
286
The act must be sufficient to produce such a condition of
mind.
If the cause of the loss of self-control was trivial and slight, as when the
victim failed to work on the hacienda of which the accused was the overseer, or
where the accused saw the injured party picking fruits from the tree claimed
by the former, the obfuscation is not mitigating. (U.S. vs. Diaz, 15 Phil. 123;
People vs. Bakil, C.A., 44
O.G. 102)
No passion or obfuscation after 24 hours, or several hours

or half an hour.
There could have been no mitigating circumstance of passion or
obfuscation when more than 24 hours elapsed between the alleged insult and
the commission of the felony (People vs. Sarikala, 37 Phil. 486, 490), or if
several hours passed between the cause of passion or obfuscation and the
commission of the crime (People vs. Aguinaldo, 92 Phil. 583,588), or where at
least half an hour intervened between the previous fight and subsequent killing
of the deceased by the accused. (People vs. Matbagon, 60 Phil. 887, 890)
Although the fact that accused was subjected by the deceased to a
treatment (being slapped and asked to kneel down) offensive to his dignity
could give rise to the feeling of passion or obfuscation, the same cannot be
treated as a mitigating circumstance where the killing took place one month
and five days later. (People vs. Mojica, No. L-30742, April 30, 1976, 70 SCRA
502, 509)
It is error to consider for the accused, passion or obfuscation, where the
newspaper articles written by the victim assailing the former's official integrity
have been published for an appreciable period long enough for pause and
reflection. (People vs. Pareja, No.
L-21937, Nov. 29, 1969, 30 SCRA 693, 716-717)
The circumstance is unavailing where the killing took place four days
after the stabbing of the accused's kin. (People vs. Constantino,
No. L-23558, Aug. 10, 1967, 20 SCRA 940, 949)
287
Art. 13
The reason for these rulings is that the act producing the obfuscation
must not be far removed from the commission of the crime by a considerable
length of time, during which the accused might have recovered his normal
equanimity.
The defense must prove that the act which produced passion or obfuscation took
place at a time not far removed from the commission of the crime.
The accused claimed that he had not been regularly paid his wages by
the victims who, he claimed further, used to scold him and beat him; but he
failed to prove that those acts which produced passion and obfuscation in him
took place at a time not far removed from the commission of the crime which
would justify an inference that after his passion had been aroused, he had no
time to reflect and cool off. Mitigation does not avail him. (People vs.
Gervacio, No.
L-21965, August 30, 1968, 24 SCRA 960, 977)
For the circumstance to exist, it is necessary that the act which gave rise
to the obfuscation be not removed from the commission of the offense by a
considerable length of time, during which period the perpetrator might
recover his normal equanimity. (People vs. Layson, No. L-25177, Oct. 31,1969,
30 SCRA 92, 95-96)
The crime committed must be the result of a sudden impulse of natural and
uncontrollable fury.
Obfuscation cannot be mitigating in a crime which was planned and
calmly meditated or if the impulse upon which the accused acted was
deliberately fomented by him for a considerable period of time.
(People vs. Daos, 60 Phil. 143,155; People vs. Hernandez, 43 Phil. 104,
111)
The circumstance of passion and obfuscation cannot be mitigating in a
crime which is planned and calmly meditated before its execution. (People vs.
Pagal, No. L-32040, Oct. 25, 1977, 79 SCRA
570, 575)
There is neither passion and obfuscation nor proximate vindication of a
grave offense where the killing of the decedent was made four days after the
stabbing of the appellant's kin. Moreover, vengeance
is not a lawful sentiment. (People vs. Constantino, et al., G.R. No.
L-23558, August 10, 1967)
Art. 13
288
Passion or obfuscation must arise from lawful sentiments.
1. The case of U.S. vs. Hicks, 14 Phil. 217.
Facts: For about 5 years, the accused and the deceased lived
illicitly in the manner of husband and wife. Afterwards, the
deceased separated from the accused and lived with another man.
The accused enraged by such conduct, killed the deceased.
Held: Even if it is true that the accused acted with
obfuscation because of jealousy, the mitigating circumstance
cannot be considered in his favor because the causes which mitigate
criminal responsibility for the loss of self-control are such which
originate from legitimate feelings, and not those which arise from
vicious, unworthy and immoral passions.
2. But the ruling in the case of Hicks should be distinguished from the case
where the accused, in the heat of passion, killed his common-law wife
upon discovering her in flagrante in carnal communication with a
common acquaintance. It was held in such a case that the accused was
entitled to the mitigating circumstance of passion or obfuscation, because
the impulse was caused by the sudden revelation that she was untrue to
him, and his discovery of her in flagrante in the arms of another. (U.S. vs.
De la Cruz, 22 Phil. 429) In U.S. vs. Hicks, the cause of passion and
obfuscation of the accused was his vexation, disappointment and anger
engendered by the refusal of the woman to continue to live in illicit
relations with him, which she had a perfect right to do.
The act of the deceased in refusing to go home with the
appellant, while provocative, nevertheless was insufficient to
produce such passion or obfuscation in the latter as would entitle
him to the benefits of that mitigating circumstance. Not being a
legitimate husband of the deceased, the appellant had no legitimate
right to compel her to go with him. The deceased was acting within
her rights. The obfuscation which the appellant allegedly possessed
him, granting that he in fact had that feeling, did not originate
from a legitimate cause. (People vs. Quijano, C.A., 50 O.G. 5819)
3. The case of People vs. Engay, (C.A.) 47 O.G. 4306.
Facts: The accused, as common-law wife, lived with the deceased
for 15 years, whose house she helped support. Later, the deceased
married another woman. The accused killed him.
Held: Although it was held in the Hicks case that "the causes which
produce in the mind loss of reason and selfcontrol and which lessen
criminal responsibility are those which originate from lawful sentiments,
not those which arise from vicious, unworthy and immoral passions," yet
such is not the case here where the fact that the accused lived for 15 long
years as the real wife of the deceased, whose house she helped to support,
could not but arouse that natural feeling of despair in the woman who saw
her life broken and found herself abandoned by the very man whom she
considered for so long a time as her husband and
for whom she had made so many sacrifices. The mitigating circumstance of
passion or obfuscation was considered in favor of the accused.
4. Marciano Martin and Beatriz Yuman, without being

/ joined in lawful wedlock, lived as husband and wife for three or four years
until Marciano left their common dwelling. Beatriz stabbed him with a
pen-knife. When asked why she wounded Marciano, she replied that
Marciano "after having taken advantage of her" abandoned her. It was
held that the mitigating circumstance of obfuscation should be taken into
consideration in favor of the accused, in view of the peculiar
circumstances of the case and the harsh treatment which the deceased
gave her a short time before she stabbed him. (People vs. Yuman, 61 Phil.
786)
5. The defense submits that the accused is entitled to the mitigating
circumstance of having acted on a provocation sufficiently strong to
cause passion and obfuscation, because the deceased's flat rejection of the
entreaties of the accused for her to quit her calling as a hostess and
return to their former relation, aggravated by her sneering statement
that the accused was penniless and invalid, provoked the
291
290
accused into losing his head and stabbing the deceased. It appears
that the accused had previously reproved the deceased for
allowing herself to be caressed by a stranger. Her loose conduct
was forcibly driven home to the accused by the remark of one
Marasigan on the very day of the crime that the accused was the
husband "whose wife was being used by one Maring for purposes
of prostitution," a remark that so deeply wounded the feelings of
the accused that he was driven to consume a large amount of wine
before visiting Alicia (deceased) to plead with her to leave her
work. Alicia's insulting refusal to renew her liaison with the
accused, therefore, was not motivated by any desire to lead a
chaste life henceforth, but showed her determination to pursue a
lucrative profession that permitted her to distribute her favors
indiscriminately. It was held that the accused's insistence that she
live with him again, and his rage at her rejection of the proposal
cannot be properly qualified as arising from immoral and
unworthy passions. Even without benefit of wedlock, a
monogamous liaison appears morally of a higher level than
gainful promiscuity. (People vs. Bello, No. L-18792, Feb.
28,1964,10 SCRA 298, 302-303)
6. Passion or obfuscation must originate from lawful sentiments, not
from the fact that, for example, the girl's sweetheart killed the
girl's father and brother because the girl's parents objected to
their getting married and the girl consequently broke off their
relationship. Such an act is actuated more by a spirit of
lawlessness and revenge rather than any sudden and legitimate
impulse of natural and uncontrollable fury. (People vs. Gravino,
Nos. L-31327-29, May 16,1983,122 SCRA 123, 133, 134)
In spirit of lawlessness.
The accused who raped a woman is not entitled to the mitigating
circumstance of "having acted upon an impulse so powerful as naturally to
have produced passion" just because he finds himself in a secluded place with
that young ravishing woman, almost naked, and therefore, "liable to succumb
to the uncontrollable passion of his bestial instinct." (People vs. Sanico, C.A.,
46 O.G. 98)
In a spirit of revenge.
A woman taking care of a 9-month-old child, poisoned the child with
acid. She did it, because sometime before the killing of the child, the mother of
291
Art. 13 MITIGATING CIRCUMSTANCES Par. 6 Passion or
Obfuscation
the child, having surprised her (accused) with a man on the bed of the master,
had scolded her. She invoked the mitigating circumstance of passion or
obfuscation resulting from that scolding by the mother of the child. Held: She
cannot be credited with such mitigating circumstance. She was actuated more
by spirit of lawlessness and revenge than by any sudden impulse of natural
and uncontrollable fury. (People vs. Caliso, 58 Phil. 283, 295)
Passion and obfuscation may not be properly appreciated in favor of

appellant. To be considered as a mitigating circumstance, passion or
obfuscation must arise from lawful sentiments and not from a spirit of
lawlessness or revenge or from anger and resentment. In the present case,
clearly, Marcelo was infuriated upon seeing his brother, Carlito, shot by Jose.
However, a distinction must be made between the first time that Marcelo
hacked Jose and the second time that the former hacked the latter. When
Marcelo hacked Jose right after seeing the latter shoot at Carlito, and if
appellant refrained from doing anything else after than, he could have validly
invoked the mitigating circumstance of passion and obfuscation. But when,
upon seeing his brother Carlito dead, Marcelo went back to Jose, who by then
was already prostrate on the ground and hardly moving, hacking Jose again
was a clear case of someone acting out of anger
in the spirit of revenge. (People vs. Bates, G.R. No. 139907, March 28,2003)
The offender must act under the impulse of special

motives.
Excitement is the natural feeling of all persons engaged in a fight,
especially those who had received a beating, and the impulse in that state is
not considered in law so powerful as to produce obfuscation sufficient to
mitigate liability. (People vs. De Guia, C.A., 36 O.G. 1151)
Two individuals had been wrestling together and after being separated,
one of them followed up the other and wounded him with a knife as he was
entering a vehicle. Held: The aggressor cannot claim in his favor that the
previous struggle produced in him entire loss of reason or self-control, for the
existence of such excitement as is inherent in all who quarrel and come to
blows does not constitute a mitigating circumstance. The guilty party must
have acted under the impulse of special motives. (U.S. vs. Herrera, 13 Phil.
583; U.S. vs. Fitzgerald, 2 Phil. 419)
But the ruling is different in the following case:
292
While the Attorney-General hesitates to accept the conclusion of the

lower court with reference to the attenuating circumstances of unjust
provocation and arrebato y obcecacion, we are inclined to accept that theory.
The record discloses that each used very insulting language concerning the
other and that they must have been very greatly excited as a result of the
quarrel, or otherwise the other people present would not have intervened. The
acts complained of were committed by the defendant soon after the quarrel
had taken place. (People vs. Flores, 50 Phil. 548)
Illustration of impulse of special motives.

The accused killed P, because the latter did not deliver the letter of F to
A, on which (letter) the accused had pinned his hopes of settling the case
against him amicably. The failure of P to deliver the letter is a prior unjust
and improper act sufficient to produce great excitement and passion in the
accused as to confuse his reason and impel him to kill P. It was a legitimate
and natural cause of indignation and anger. (People vs. Mil, 92 SCRA 89)
Obfuscation arising from jealousy.

The mitigating circumstance of obfuscation arising from jealousy cannot
be invoked in favor of the accused whose relationship with the woman (his
common-law wife) was illegitimate. (People vs. Salazar, 105 Phil. 1058, citing
U.S. vs. Hicks, 14 Phil. 217; People vs. Olgado, et al., L-4406, March 31, 1952)
Where the killing of the deceased by the accused arose out of rivalry for
the hand of a woman, passion or obfuscation is mitigating.
The feeling of resentment resulting from rivalry in amorous relations
with a woman is a powerful instigator of jealousy and prone to produce anger
and obfuscation. (People vs. Marasigan, 70 Phil. 583;
People vs. Macabangon, 63 Phil. 1062)
In an early case, it was held that the loss of reason and selfcontrol due to
jealousy between rival lovers was not mitigating. (U.S. vs. De la Pena, 12 Phil.
698)
Obfuscation — when relationship is illegitimate — not

mitigating.
The relations of the accused with Rosario Rianzales were illegitimate.
The injured party made indecent propositions to her which provoked the
accused. The accused attacked the injured party. The obfuscation of the
293
Obfuscation
accused is not mitigating, because his relations with Rosario Rianzales were
illegitimate. (People vs. Olgado, et al,
G.R. No. L-4406, March 31, 1952)
The cause producing passion or obfuscation must come

from the offended party.
The two sons, believing that S would inflict other wounds upon their
father, who was already wounded, in defense of their father, immediately
killed S. Under this great excitement, the two sons also proceeded to attack
and did kill C who was near the scene at the time.
Held: Since C had taken no part in the quarrel and had not in any
manner provoked the sons, passion or obfuscation cannot mitigate their
liability with respect to the killing of C. This extenuating circumstance is
applied to reduce the penalty in cases where the
provocation which caused the heated passion was made by the injured party.
(U.S. vs. Esmedia, et al, 17 Phil. 260)
Where passion or obfuscation of the accused is not caused by the
offended party but by the latter's relatives who mauled the wife
of the accused, the same may not be considered as a mitigating circumstance
in his favor. (People vs. Lao, C.A., 64 O.G. 7873)
May passion or obfuscation lawfully arise from causes

existing only in the honest belief of the offender?
Yes.
(1) Thus, the belief of the defendant that the deceased had caused his
dismissal from his employment is sufficient to confuse his reason
and impel him to commit the crime.
(U.S. vs. Ferrer, 1 Phil. 56, 62)
(2) It has also been held that the belief entertained in good faith by
the defendants that the deceased cast upon their mother a spell
of witchcraft which was the cause of her serious illness, is so
powerful a motive as to naturally produce passion or
obfuscation. (U.S. vs. Macalintal, 2 Phil.
448, 451; People vs. Zapata, 107 Phil. 103, 109)
(3) One of the accused, a self-anointed representative of God who
claims supernatural powers, demanded of the deceased to kiss
and awake her dead sister who, she said, was merely asleep. The
294
deceased, an old lady, refused. The accused thought that the

deceased had become a devil. Then she commanded her
companions to surround the deceased and pray to drive the evil
spirits away, but, allegedly without success. The accused barked
an order to beat the victim to death as she had turned into Satan
or Lucifer. Held: The accused and her sisters are entitled to the
mitigating circumstance of passion or obfuscation. Her order to
kiss and awake her sister was challenged by the victim. This
generated a false belief in the minds of the three sisters that in
the victim's person resided the evil spirit — Satan or Lucifer.
And this triggered "an impulse so powerful as naturally to have
produced passion or obfuscation." (People vs. Torres, 3 CAR
[2s] 43, 56, 57)
Passion or obfuscation is a mitigating circumstance because the offender
who acts with passion or obfuscation suffers a diminution of his intelligence
and intent.
Provocation and obfuscation arising from one and the

same cause should be treated as only one mitigating
circumstance.
Since the alleged provocation which caused the obfuscation of the
appellants arose from the same incident, that is, the alleged maltreatment
and/or ill-treatment of the appellants by the deceased, those two mitigating
circumstances cannot be considered as two distinct and separate
circumstances but should be treated as one. (People vs. Pagal, No. L-32040,
Oct. 25, 1977, 79 SCRA 570, 575)
Thus, where the accused killed his wife during a quarrel, because he,
who had no work, resented her suggestion to join her brother in the business
of cutting logs, the court erred in considering in favor of the accused the two
mitigating circumstances of provocation and obfuscation.
Vindication of grave offense cannot co-exist with passion

and obfuscation.
In the case of People vs. Yaon, C.A., 43 O.G. 4142, it was held that if the
accused assailed his victim in the proximate vindication of a grave offense, he
295
Obfuscation
cannot successfully allege that he was also, in the same breath, blinded by
passion and obfuscation, because these two
mitigating circumstances cannot both exist and be based on one and the same
fact or motive. At most, only one of them could be considered in favor of the
appellant, but not both simultaneously. Viada, citing more than one dozen
cases, says that it is the constant doctrine of the Spanish Supreme Court that
one single fact cannot be made the basis of different modifying circumstances.
Exception — When there are other facts, although closely

connected.
But where there are other facts, although closely connected with the fact
upon which one circumstance is premised, the other circumstance may be
appreciated as based on the other fact. (People vs. Diokno, 63 Phil. 601)
Thus, where the deceased, a Chinaman, had eloped with the daughter of
the accused, and later when the deceased saw the accused coming, the
deceased ran upstairs in his house, there are two facts which are closely
connected, namely: (1) elopement, which is a grave offense to a family of old
customs, and (2) refusal to deal with him, a stimulus strong enough to produce
in his mind a fit of passion. Two mitigating circumstances of (1) vindication,
and (2) passion were considered in favor of the accused. The mitigating
circumstance of vindication of a grave offense was based on the fact of
elopement and that of passion on the fact that the deceased, instead of meeting
him and asking for forgiveness, ran away from the accused.
Passion or obfuscation compatible with lack of intention

to commit so grave a wrong.
So, it has been held in People vs. Cabel, 5 CAR [2s] 507, 515.
Passion or obfuscation incompatible with treachery.

Passion or obfuscation cannot co-exist with treachery, for while in the
mitigating circumstance of passion or obfuscation the offender loses his reason
and self-control, in the aggravating circumstance of treachery, the mode of
attack must be consciously adopted. One who loses his reason and self-control
cannot deliberately employ a particular means, method or form of attack in
the execution of a crime.
(People vs. Wong, 18 CAR [2s] 934, 940-941)
Vindication or obfuscation cannot be considered when the person attacked is not

the one who gave cause therefor.
296
Vindication and obfuscation cannot be considered, not only because the

elopement of Lucila Dagatan with Eleuterio Yara and her abandonment by
the latter took place long before the commission of the crime, but also because
the deceased was not the one who eloped with and abandoned her. (People vs.
Dagatan, et al., 106 Phil. 88)
Passion and obfuscation cannot co-exist with evident

premeditation.
The aggravating circumstance of evident premeditation cannot co-exist
with the circumstance of passion and obfuscation. The essence of
premeditation is that the execution of the criminal act must be preceded by
calm thought and reflection upon the resolution to carry out the criminal
intent during the space of time sufficent to arrive at a composed judgment.
(People vs. Pagal, et. al., G.R. No. L-32040, Oct. 25, 1977)
Passion or obfuscation distinguished from irresistible

force.
1. While passion or obfuscation is a mitigating circumstance,
irresistible force is an exempting circumstance.
2. Passion or obfuscation cannot give rise to an irresistible force
because irresistible force requires physical force.
3. Passion or obfuscation, is in the offender himself, while irresistible
force must come from a third person.
4. Passion or obfuscation must arise from lawful sentiments;
whereas, the irresistible force is unlawful.
297
Surrender and Confession of Guilt Par. 7
Passion or obfuscation distinguished from provocation.

1. Provocation comes from the injured party; passion or obfuscation
is produced by an impulse which may be caused by provocation.
2. Provocation must immediately precede the commission of the
crime; in passion or obfuscation, the offense which engenders
perturbation of mind need not be immediate. It is only required
that the influence thereof lasts until the moment the crime is
committed.
3. In both, the effect is the loss of reason and self-control on the part
of the offender.
Par. 7. — That the offender had voluntarily surrendered himself to a

person in authority or his agents, or that he had voluntarily
confessed his guilt before the court prior to the presentation
of the evidence for the prosecution.
Two mitigating circumstances are provided in this

paragraph.
1. Voluntary surrender to a person in authority or his agents.
2. Voluntary confession of guilt before the court prior to the
presentation of evidence for the prosecution.
Although these circumstances are considered mitigating in the same
subsection of Article 13, when both are present, they should have the effect of
mitigating as two independent circumstances. If any of them must mitigate the
penalty to a certain extent, when both are present, they should produce this
effect to a greater extent. (People vs. Fontabla, 61 Phil. 589, 590)
Requisites of voluntary surrender.

a. That the offender had not been actually arrested.
b. That the offender surrendered himself to a person in authority or
to the latter's agent.
c. That the surrender was voluntary. (Estacio vs. Sandiganbayan,
G.R. No. 75362, March 6, 1990, 183 SCRA 12, 24, citing People
vs. Canamo, 138 SCRA 141, 145 and People vs. Hanasan, No. L-
25989, Sept. 30, 1969, 29 SCRA 534, 541-542)
Requisite of voluntariness.
298
For voluntary surrender to be appreciated, the same must be
spontaneous in such a manner that it shows the interest of the accused to
surrender unconditionally to the authorities, either because he acknowledged
his guilt or because he wishes to save them the trouble and expenses
necessarily incurred in his search and capture. (People
vs. Gervacio, No. L-21965, Aug. 30, 1968, 24 SCRA 960, 977, citing
People vs. Sakam, 61 Phil. 27)
Merely requesting a policeman to accompany the accused to the police

headquarters is not equivalent to the requirement that he "voluntarily
surrendered himself to a person in authority or his agents." The accused must
actually surrender his own person to the authorities, admitting complicity in
the crime. His conduct, after the commission of the crime, must indicate a
desire on his part to own the responsibility for the crime. (People vs. Flores, 21
CAR [2s] 417, 424-425)
Cases of voluntary surrender.

1. The accused, after plunging a bolo into the victim's chest, ran toward the
municipal building. Upon seeing a patrolman, he immediately threw
away his bolo, raised his two hands, offered no resistance and said to the
patrolman "here is my bolo, I stabbed the victim." There was intent or
desire to surrender voluntarily to the authorities. (People vs. Tenorio,
No. L-15478, March 30, 1962, 4 SCRA 700, 703)
2. After the commission of the crime, the accused fled to a hotel to hide not
from the police authorities but from the companions of the deceased who
pursued him to the hotel but could not get to him because the door was
closed after the accused had entered. Once in the hotel, the accused
dropped his weapon at the door and when the policemen came to
investigate, he readily admitted ownership of the weapon and then
voluntarily went with them. He was MITIGATING CIRCUMSTANCES
Art. 13
investigated by the fiscal the following day. No warrant had been issued
for his arrest. The accused was granted the benefit of the mitigating
circumstance of voluntary surrender. (People vs. Dayrit, 108 Phil. 100,
103)
3. Immediately after the shooting, the accused having all the opportunity to
escape, did not do so but instead called up the police department. When
the policemen went to the scene of the crime to investigate, he voluntarily
approached them and without revealing his identity, told them that he
would help in connection with the case as he knew the suspect and the
latter's motive. When brought to the police station immediately
Par. 7 Surrender and Confession of Guilt
thereafter as a possible witness, he confided to the investigators that he
was voluntarily surrendering and also surrendering the fatal gun used in
the shooting of the victim. These acts of the accused were held strongly
indicative of his intent or desire to surrender voluntarily to the
authorities. (People vs. Benito, No. L-32042, Feb. 13, 1975, 62 SCRA 351,
355)
4. The two accused left the scene of the crime but made several attempts to
surrender to various local officials which somehow did not materialize
for one reason or another. It was already a week after when they were
finally able to surrender. Voluntary surrender avails. After committing
the crime, the accused defied no law or agent of the authority, and when
they surrendered, they did so with meekness and repentance. (People vs.
Magpantay, No. L-19133, Nov. 27, 1964, 12 SCRA 389, 392, 393)
5. Tempered justice suggests that appellants be credited with voluntary
surrender in mitigation. That they had no opportunity to surrender
because the peace officers came, should not be charged against them. For
one thing is certain—they yielded their weapons at the time. Not only
that. They voluntarily went with the peace officers to the municipal
building. These acts, in legal effect, amount to voluntary surrender.
(People vs. Torres, 3 CAR [2s] 43,57, citing earlier cases)
6. The accused did not offer any resistance nor try to hide when a
policeman ordered him to come down his house.
301
He even brought his bolo used to commit the crime and

voluntarily gave himself up to the authorities before he could be
arrested. These circumstances are sufficient to consider the
mitigating circumstance of voluntary surrender in his favor.
(People vs. Radomes, No. L-68421, March 20, 1986, 141 SCRA
548, 562)
7. All that the records reveal is that the accused trooped to the police
headquarters to surrender the firearm used in committing the
crime. It is not clear whether or not he also sought to submit his
very person to the authorities. The accused is given the benefit of
the doubt and his arrival at the police station is considered as an
act of surrender. (People vs. Jereza, G.R. No. 86230, Sept. 18,
1990, 189 SCRA 690, 698-699)
8. Where there is nothing on record to show that the warrant for the
arrest of the accused had actually been served on him, or that it
had been returned unserved for failure of the server to locate said
accused, and there is direct evidence to show that he voluntarily
presented himself to the police when he was taken into custody.
300
(People vs. Brana, No. L-29210, Oct. 31, 1969, 30 SCRA 307, 316-
317)
Cases not constituting voluntary surrender.

1. The warrant of arrest showed that the accused was in fact arrested. (El
Pueblo contra Conwi, 71 Phil. 595, 597)
2. The accused surrendered only after the warrant of arrest was served
upon him. (People vs. Roldan, No. L-22030, May 29,1968, 23 SCRA
907, 910)
3. Where the accused was actually arrested by his own admission or that
he yielded because of the warrant of arrest, there is no voluntary
surrender although the police blotter euphemistically used the word
"surrender." (People vs. Velez, No. L-30038, July 18, 1974, 58 SCRA
21, 30)
4. The accused went into hiding and surrendered only when they realized
that the forces of the law were closing in on them. (People vs. Mationg,
No. L-33488, March 29, 1982,
113 SCRA 167, 178)
5. Where the accused were asked to surrender by the police and military
authorities but they refused until only much later when they could no
longer do otherwise by force of circumstances when they knew they
were completely surrounded and there was no chance of escape. Their
surrender was not spontaneous as it was motivated more by an intent
to insure their safety. (People vs. Salvilla, G.R. No. 86163, April 26,
1990, 184 SCRA 671, 678-679; People vs. Sigayan, No. L-18308, April
30,1966,16 SCRA 834, 844)
6. Where the search for the accused had lasted four (4) years, which
belies the spontaneity of the surrender. (People vs. De la Cruz, No. L-
30059, Dec. 19, 1970, 36 SCRA 452, 455)
7. Where other than the accused's version in court that he went to a
police officer in Dagupan City and asked the latter to accompany him
to Olongapo City after he was told by someone that his picture was
seen posted in the municipal building, no other evidence was presented
to establish indubitably that he deliberately surrendered to the police.
(People vs. Garcia, No. L-32071, July 9, 1981, 105 SCRA 325, 343)
8. Where the accused only went to the police station to report that his
wife was stabbed by another person and to seek protection as he feared
that the same assailant would also
stab him. (People vs. Trigo, G.R. No. 74515, June 14,1989, 174 SCRA 93,
99)
9. Where the accused went to the PC headquarters not to surrender but
merely to report the incident which does not evince any desire to own
the responsibility for the killing of the deceased. (People vs. Rogales,
No. L-17531, Nov. 30, 1962, 6 SCRA 830, 835)
10. Where the Chief of Police placed the accused under arrest in his
employer's home to which that officer was summoned and it does not
appear that it was the idea of the accused to send for the police for the
purpose of giving himself up.
(People vs. Canoy, 90 Phil. 633, 643)
11. Where the accused accompanied the Chief of Police to the scene of the
crimes and he was not yet charged with, or
303
302
suspected of having taken any part in, said crimes, and the
authorities were not looking for him, and would not have looked
for him if he had not been present at the investigation by the
Chief of Police. (People vs. Canoy, 90 Phil. 633, 644)
Where the accused was arrested in his boarding house and upon
being caught, pretended to say that he was on his way to the
municipal building to surrender to the authorities, for that is not
the nature of voluntary surrender that may serve to mitigate one's
liability in contemplation of law.
(People vs. Rubinal, 110 Phil. 119, 127)
Not mitigating when defendant was in fact arrested.

There was no voluntary surrender if the warrant of arrest showed that
the defendant was in fact arrested. (People vs. Conwi,
71 Phil. 595)
But where a person, after committing the offense and having
opportunity to escape, voluntarily waited for the agents of the authorities and
voluntarily gave himself up, he is entitled to the benefit of this circumstance,
even if he was placed under arrest by a policeman then and there. (People vs.
Parana, 64 Phil. 331)
And when the accused helped in carrying his victim to the hospital where
he was disarmed and arrested, it is tantamount to voluntary
surrender. (People vs. Babiera, C.A., 45 O.G., Supp. 5, 311)
The facts of Conwi case, supra, should be distinguished from the facts of
the cases of People vs. Parana and People vs. Babiera, supra, where the arrest
of the offender was after his voluntary surrender or after his doing an act
amounting to a voluntary surrender to the agent of a person in authority.
The accused who ran to the municipal building after the commission of the
crime had the intention or desire to surrender.
If the accused wanted to run away or escape, he would not have run to
the municipal building. The fact that on seeing a patrolman, the accused threw
away his bolo, raised his two hands, and admitted having stabbed the injured
party, is indicative of his intent or desire to surrender voluntarily to the
authorities. (People vs. Tenorio, G.R. No. L-15478, March 30, 1962)
304
The accused who fled and hid himself to avoid reprisals from the companions of
the deceased, but upon meeting a policeman voluntarily went with him to the jail,
is entitled to the benefit of the mitigating
circumstance of voluntary surrender.
Thus, when the accused, after the commission of the crime, fled to the
Imperial Hotel for security purposes, as there was no policeman around and
the companions of the deceased were pursuing him to that place, and once
inside he hid himself there, his going voluntarily to the jail with the policeman
who had gone to the hotel to investigate the incident, was held to be a
mitigating circumstance. (People vs. Dayrit, G.R. No. L-14388, May 20, 1960)
When the accused surrendered only after the warrant of arrest had been served
upon him, it is not mitigating.
It appears that appellant surrendered only after the warrant of arrest
was served upon him, which cannot be considered as a "voluntary surrender."
(People vs. Roldan, G.R. No. L-22030, May 29,1968)
When the warrant of arrest had not been served or not

returned unserved because the accused cannot be
located, the surrender is mitigating.
While it is true that the warrant for the arrest of the accused was dated
March 7,1967, and the police authorities were able to take custody of the
accused only on March 31,1967, there is nothing in the record to show that the
warrant had actually been served on him, or that it had been returned
unserved for failure of the server to locate said accused. Upon the other hand,
there is direct evidence that the accused voluntarily presented himself to the
police on March 31, 1967. And the fact that it was effected sometime after the
warrant of arrest had been issued does not in the least detract from the
voluntary character of the surrender in the absence of proof to the contrary.
(People vs. Brana, 30 SCRA 308)
The law does not require that the surrender be prior to the
order of arrest.
In People vs. Yeda, 68 Phil. 740 [1939] and People vs. Turalba,
G.R. No. L-29118, Feb. 28, 1974, it was held that when after the commission of
the crime and the issuance of the warrant of arrest, the accused presented
himself in the municipal building to post the bond for his temporary release,
voluntary surrender is mitigating. The fact that the order of arrest had
304
already been issued is no bar to the consideration of the circumstance because

the law does not require that the surrender be prior to the order of arrest.
(Rivera
vs. Court of Appeals, G.R. No. 125867, May 31, 2000)
"Voluntarily surrendered himself."

After the incident, the accused reported it to the councilor; that he
stayed in the councilor's place for about an hour; and that thereafter he went
to the chief of police to whom he related what had happened between him and
the injured party and surrendered the bolo — not his person — to said chief
of police.
Held: The foregoing facts do not constitute voluntary surrender. The
law requires that the offender must have "voluntarily surrendered himself to a
person in authority or his agents." (People vs. Jose de
Ramos, CA-G.R. No. 15010-R, April 26, 1956)
Surrender of weapons cannot be equated with voluntary surrender.
(People vs. Verges, No. L-36882-84, July 24, 1981, 105 SCRA 744, 756)
Where the accused merely surrendered the gun used in the killing,
without surrendering his own person to the authorities, such act of the accused
does not constitute voluntary surrender. (People vs. Palo, 101 Phil. 963, 968)
The fact that the accused did not escape or go into hiding after the
commission of the murder and in fact he accompanied the chief of police to the
scene of the crime without however surrendering to him and admitting
complicity in the killing did not amount to voluntary surrender to the
authorities and this circumstance would not be extenuating in that case.
(People vs. Canoy, 90 Phil. 633; People vs. Rubinal, G.R. No. L-12275, Nov. 29,
1960)
Appellant did not go to the PC headquarters after the shooting to
surrender but merely to report the incident. Indeed, he never evinced any
desire to own the responsibility for the killing of the deceased.
(People vs. Rogales, 6 SCRA 830)
The surrender must be made to a person in authority or

his agent.
A "person in authority" is one directly vested with jurisdiction, that is, a
public officer who has the power to govern and execute the laws whether as an
individual or as a member of some court or governmental corporation, board
or commission. A barrio captain and a barangay chairman are also persons in
authority. (Art. 152, RPC, as amended by P.D. No. 299)
305
An "agent of a person in authority" is a person, who, by direct provision

of the law, or by election or by appointment by competent authority, is
charged with the maintenance of public order and the protection and security of
life and property and any person who comes to the aid of persons in authority.
(Art. 152, as amended by Rep. Act No. 1978)
Voluntary surrender to commanding officer of the accused is mitigating,
because the commanding officer is an agent of a person in authority.
Voluntary surrender to the chief clerk of a district engineer is not
mitigating, because such chief clerk is neither a person in authority nor his
agent.
An accused who surrendered first to the Justice of the Peace
(now Municipal Court), with whom he posted a bond, and then to the
Constabulary headquarters of the province, is entitled to the mitigation of
voluntary surrender. (People vs. Casalme, No. L-18033, July 26, 1966, 17
SCRA 717, 720-721)
Voluntary surrender does not simply mean non-flight.

Voluntary surrender does not simply mean non-flight. As a matter of
law, it does not matter if the accused never avoided arrest and never hid or
fled. What the law considers as mitigating is the voluntary surrender of an
accused before his arrest, showing either acknowledgment of his guilt or an
intention to save the authorities from the trouble and expense that his search
and capture would require. (Quial vs. Court of Appeals, No. L-63564, Nov. 28,
1983, 126 SCRA 28, 30; People vs. Radomes, No. L-68421, March 20, 1986,141
SCRA 548, 560)
The fact that the accused did not escape or go into hiding after the
commission of the murder and in fact he accompanied the chief of police to
the scene of the crime without however surrendering to him and admitting
complicity in the killing did not amount to voluntary surrender to the
authorities and this circumstance would not be extenuating in that case.
(People vs. Canoy and People vs. Rubinal,
supra)
Time and place of surrender.

The Revised Penal Code does not make any distinction among the
various moments when the surrender may occur.
Five days after the commission of the crime of homicide and two days
after the issuance of the order for his arrest, the accused presented himself in
the municipal building to post the bond for his temporary release.
306
Held: This is a voluntary surrender constituting a mitigating

circumstance. The law does not require that the surrender be prior to the
issuance of the order of arrest. Moreover, the surrender of the accused to post
a bond for his temporary release was in obedience to the order of arrest and
was tantamount to the delivery of his person to the authorities to answer for
the crime for which his arrest was ordered. (People vs. Yecla, 68 Phil. 740,
741; People vs. Brafia, No. L-29210, Oct. 31, 1969, 30 SCRA 307, 316-317;
People vs. Turalba, No. L-29118, Feb. 28, 1974, 55 SCRA 697, 704-705)
Note: In these cases, there is nothing in the record to show that the
warrant had actually been served on the accused, or that it had
been returned unserved for failure of the server to locate the
accused. The implication is that if the accused cannot be
located by the server of the warrant, the ruling should be
different.
In the case of People vs. Coronel, G.R. No. L-19091, June 30,1966, the
accused committed robbery with homicide on September 7,1947, and
surrendered on June 2,1954. It was held that the surrender was voluntary and
a mitigating circumstance.
But if the appellants surrendered because, after having been fugitives
from justice for more than 7 years, they found it impossible to live in hostility
and resistance to the authorities, martial law having been declared, the
surrender was not spontaneous. (People vs. Sabater, 81 SCRA 564)
Likewise, an accused was held entitled to the mitigating circumstance of
voluntary surrender where it appeared that he posted the bond for his
provisional liberty eighteen days after the commission of the crime and
fourteen and sixteen days, respectively, after the first and second warrants for
his arrest were issued, the court declaring that the fact that the warrant for his
arrest had already been issued is no bar to the consideration of this mitigating
circumstance because the law does not require that the surrender be prior to
the order of arrest. (People vs. Valera, et al, L-15662, Aug. 30,1962) By parity
of reasoning, therefore, appellant Maximo Diva's voluntary surrender to the
chief of police of the municipality of Poro should be considered to mitigate his
criminal liability because the law does not require him to surrender to the
authorities of the municipality of San Francisco where the offense was
committed. (People vs. Diva, et al., 23 SCRA 332)
In a homicide case where after the killing of the deceased which took
place in Janiuay, Iloilo, the two accused fled, took refuge in the house of a
lawyer, and surrendered to the constabulary in Iloilo City, after passing three
municipalities, it was held that there was voluntary surrender. (People vs.
Cogulio, C.A., 54 O.G. 5516)
307
The surrender must be by reason of the commission of the

crime for which defendant is prosecuted.
Defendant cannot claim the circumstance of voluntary surrender
because he did not surrender to the authority or its agents by reason of the
commission of the crime for which he was prosecuted, but for
being a Huk who wanted to come within the pale of the law. (People vs.
Semaiiada, etc., G.R. No. L-11361, May 26, 1958)
Thus, if the defendant surrendered as a Huk to take advantage of the
amnesty, but the crime for which he was prosecuted was distinct and separate
from rebellion, his surrender is not mitigating.
Surrender through an intermediary.

The accused surrendered through the mediation of his father before
any warrant of arrest had been issued. His surrender was
appreciated as mitigating. (People vs. De la Cruz, No. L-45485, Sept.
19,1978, 85 SCRA 285, 292)
When is surrender voluntary?

A surrender to be voluntary must be spontaneous, showing the intent of
the accused to submit himself unconditionally to the authorities, either (1)
because he acknowledges his guilt, or (2) because he wishes to save them the
trouble and expenses necessarily incurred in his search and capture. (Quoted
in People vs. Lagrana, No. L-68790,
Jan. 23, 1987, 147 SCRA 281, 285)
If none of these two reasons impelled the accused to surrender, because
his surrender was obviously motivated more by an intention to insure his
safety, his arrest being inevitable, the surrender is not spontaneous and
therefore not voluntary. (People vs. Laurel, C.A., 59 O.G. 7618)
The surrender must be spontaneous.

The word "spontaneous" emphasizes the idea of an inner impulse,
acting without external stimulus. The conduct of the accused, not his intention
alone, after the commission of the offense, determines the spontaneity of the
surrender.
The circumstances surrounding the surrender of Simplicio Gervacio do
not meet this standard, because immediately after the commission of the
robbery-slaying attributed to him and Atanacio Mocorro, they fled together to
the province of Leyte which necessitated the authorities of Quezon City to go
to the place and search for them. In fact, Simplicio Gervacio surrendered to
308
the Mayor of Biliran twelve days after the commission of the crime, and only
after Luz \dminda had been discovered in a far away sitio which led to the
arrest of Atanacio Mocorro. (People vs. Gervacio, No. L-21965, August 30,
1968, 24 SCRA 960, 977)
The circumstance that the accused did not resist arrest or struggle to
free himself after he was taken to custody by the authorities cannot amount to
voluntary surrender. (People vs. Siojo, 61 Phil. 307, 318; People vs. Yuman, 61
Phil. 786, 787, 791) And while it is claimed that the accused intended to
surrender, the fact is that he did not, despite several opportunities to do so,
and was in fact arrested. (People vs. Dimdiman, 106 Phil. 391, 397)
Voluntary surrender cannot be appreciated in favor of an accused who
surrenders only after a warrant of arrest is issued and he finds it futile to
continue being a fugitive from justice. (People vs. Rodriguez,
No. L-41263, Dec. 15, 1982, 119 SCRA 254, 258)
For voluntary surrender to be appreciated, it is necessary that the same
be spontaneous in such manner that it shows the intent of the accused to
surrender unconditionally to the authorities, either because he acknowledges
his guilt or because he wishes to save them the trouble and expense necessarily
incurred in his search and capture. (People vs. Lingatong, G.R. No. 34019,
Jan. 29, 1990, 181 SCRA 424, 430, citing earlier cases)
The surrender is not spontaneous where the accused took almost nine
months after the issuance of the warrant of arrest against him before he
presented himself to the police authorities. (People vs. Mabuyo, No. L-29129,
May 8, 1975, 63 SCRA 532, 542).
Neither is voluntary surrender spontaneous where the accused had gone
into hiding for 2 1/2 years before surrendering. (People vs. Ablao, G.R. No.
69184, March 26,1990, 183 SCRA 658, 669).
Intention to surrender, without actually surrendering, is

not mitigating.
The mitigating circumstance of voluntary surrender cannot be
appreciated in favor of the accused who claims to have intended to surrender
but did not, despite several opportunities to do so, and was in fact arrested.
(People vs. Dimdiman, supra)
Note: The law requires that the accused must surrender him-
self.
309
There is spontaneity even if the surrender is induced by fear of retaliation by the

victim's relatives.
The fact that the accused gave himself up to the police immediately after
the incident was not considered in his favor, because during the trial, he
declared that he did so out of fear of retaliatory action from the relatives of
the deceased. This, according to the trial Judge, is not the kind of surrender
that entitles the accused to the benefit of voluntary surrender.
Held: That the surrender was induced by his fear of retaliation by

the victim's relatives does not gainsay the spontaneity of the surrender,
nor alter the fact that by giving himself up, this accused saved the State the
time and trouble of searching for him until arrested. (People vs. Clemente, No.
L-23463, Sept. 28, 1967, 21 SCRA 261, 268-269)
When the offender imposed a condition or acted with external stimulus, his
surrender is not voluntary.
There could have been no voluntary surrender because the accused went
into hiding after having committed the crimes and refused to surrender
without having first conferred with the town councilor. (People vs. Mutya,
G.R. Nos. L-l 1255-56, Sept. 30, 1959)
A surrender is not voluntary when forced by circumstances, as when the
culprits "considered it impossible to live in hostility and resistance to the
constituted authorities and their agents in view of the fact that the said
authorities had neither given them rest nor left them in peace for a moment."
(People vs. Sakam, 61 Phil. 27, 34)
When they started negotiations for their surrender, the roads through
which their escape could be attempted were blocked and the house where they
were hiding was surrounded by the Constabulary forces. They surrendered,
because of their belief that their escape was impossible under the
circumstances. The surrender was not voluntary. (People vs. Timbol, G.R.
Nos. L-47471-47473, Aug. 4,1944) Requisites of plea of guilty.
In order that the plea of guilty may be mitigating, the three requisites
must be present:
1. That the offender spontaneously confessed his guilt;

2. That the confession of guilt was made in open court, that is, before
the competent court that is to try the case; and
3. That the confession of guilt was made prior to the presentation of
evidence for the prosecution. (See People vs. Crisostomo, No. L-
310
32243, April 15, 1988, 160 SCRA 47, 56, citing earlier cases. Also,
People vs. Bueza, G.R. No.
79619, Aug. 20, 1990, 188 SCRA 683, 689)
The plea must be made before trial begins.

The trial on the merits had commenced and the prosecution had already
presented evidence proving the guilt of the accused when he manifested that
he would change his plea of not guilty to a plea of
311
Surrender and Confession of Guilt
guilty. He was properly rearraigned. As ruled in People vs. Kayanan (83

SCRA 437), a plea of guilty made after arraignment and after trial had begun
does not entitle the accused to have such plea considered as a mitigating
circumstance. (People vs. Lungbos, No. L-57293, June
21,1988,162 SCRA 383,388-389; People vs. Verano, Jr., No. L-45589, July 28,
1988, 163 SCRA 614, 621)
Plea of guilty on appeal, not mitigating.

Plea of guilty in the Court of First Instance (now RTC) in a case
appealed from the Municipal Court is not mitigating, because the plea of
guilty must be made at the first opportunity, that is, in the Municipal Court.
(People vs. Hermino, 64 Phil. 403, 407-408; People vs. De la Pena, 66 Phil. 451,
453)
It cannot be properly stated that the appeal taken by the accused from
the Municipal Court to the Court of First Instance again restored the case to
its original state for the reason that the law requires a trial de novo, because a
trial de novo necessarily implies the existence of a previous trial where
evidence was presented by the prosecution.
Philosophy behind the rule.

If an accused, charged with an offense cognizable by the municipal
court, pleads not guilty therein, and on appeal to the court of first instance,
changes his plea to that of guilty upon rearraignment, he should not be entitled
to the mitigating circumstance of confession of guilt. The philosophy behind
this rule is obvious. For the spontaneous willingness of the accused to admit
the commission of the offense charged, which is rewarded by the mitigating
circumstance, is absent. (People vs. Fortuno, 73 Phil. 597) Indeed, if the rule
were otherwise, an accused, who naturally nourishes the hope of acquittal,
could deliberately plead not guilty in the municipal court, and upon conviction
and on appeal to the court of first instance, plead guilty
just so he can avail himself of the benefit of a mitigating circumstance. This
cannot be countenanced. The accused should not be allowed to speculate.
(People vs. Oandasan, 25 SCRA 277)
Plea of not guilty at the preliminary investigation is no plea

at all.
If an accused is charged with an offense cognizable by the court of first
instance, and pleads not guilty before the municipal court at its preliminary
312
Par. 7
investigation, and after the elevation of the case to the court of first instance
—the court of competent jurisdiction—he pleads guilty upon arraignment
before this latter court, the plea of not guilty upon arraignment at the
preliminary investigation in the municipal court is no plea at all. Hence, the
accused could claim his plea of guilty in the court of first instance as
mitigating circumstance pursuant to Article 13(7) of the Revised Penal Code.
(People vs. Oandasan, supra)
The confession of guilt must be made in open court.

The extrajudicial confession made by the accused is not the voluntary
confession which the Code contemplates. Such confession was made outside of
the court. The confession of guilt must be made in open court. (People vs.
Pardo, et al., 79 Phil. 568)
The confession of guilt must be made prior to the presentation of the evidence for
the prosecution.
Plea of guilty after the fiscal had presented evidence is not mitigating
because the third requisite is lacking. (People vs. Co Chang,
60 Phil. 293)
The benefit of plea of guilty is not deserved by the accused who submits
to the law only after the presentation of some evidence for the prosecution,
believing that in the end the trial will result in his conviction by virtue thereof.
(People vs. De la Cruz, 63 Phil. 874; People vs. Lambino, 103 Phil. 504)
It is not necessary that all the evidence of the prosecution have been
presented. Even if the first witness presented by the prosecution had not
finished testifying during the direct examination when the accused withdrew
his former plea of "not guilty" and substituted it with the plea of "guilty," the
plea of guilty is not mitigating. (People vs. Lambino, 103 Phil. 504)
Withdrawal of plea of not guilty and pleading guilty before

presentation of evidence by prosecution is still mitigating.
All that the law requires is voluntary plea of guilty prior to the
presentation of the evidence by the prosecution. Thus, even if during the
arraignment, the accused pleaded not guilty, he is entitled to this mitigating
circumstance as long as he withdraws his plea of Surrender and Confession of
Guilt
not guilty and thereafter pleads guilty to the charge before the fiscal could
present his evidence.
313
The change of plea should be made at the first opportunity.
But in a case where the accused committed the crime on March 22,1956,
and when arraigned on May 14,1956, he pleaded not guilty, and it was only on
August 11, 1957, or about 1 year, 3 months and 7 days that he felt contrite and
repentant by changing his former plea of not guilty to that of guilty, his plea of
guilty was obviously not spontaneous, and was apparently done not because of
his sincere desire to repent but because of his fear of eventual conviction. If it
was his desire to repent and reform, he could have pleaded guilty at the very
first opportunity when his arraignment was first set. (People vs. Quesada, 58
O.G. 6112)
A conditional plea of guilty is not a mitigating circumstance.

The plea of guilty was conditioned upon the allegation that the killing
was done when the appellant surprised his wife in the act of sexual intercourse
with the deceased Moro Lario. We already pointed out that "an accused may
not enter a conditional plea of guilty in the sense that he admits his guilt
provided that a certain penalty be imposed upon him." We are, therefore,
constrained to hold that the appellant in this case must be considered as
having entered a plea of not guilty. (People vs. Moro Sabilul, 89 Phil. 283, 285)
Death penalty changed to life imprisonment because of

plea of guilty, even if done during the presentation of
evidence.
While the accused entered a plea of guilty, he did it only during the
continuation of the trial so that this circumstance may not, under the law, be
considered to mitigate the liability of the accused. However, such an admission
of guilt indicates his submission to the law and a moral disposition on his part
to reform, hence, the death
penalty imposed is changed to life imprisonment. (People vs. Coronel, No. L-
19091, June 30, 1966, 17 SCRA 509, 513)
Plea of guilty to amended information.

Trial had already begun on the original information for murder and
frustrated murder. However, in view of the willingness of the
314
Par. 7
accused to plead guilty for a lesser offense, the prosecution, with leave of
court, amended said information to make it one for homicide and frustrated
homicide, and the accused pleaded guilty thereto. That was an entirely new
information and no evidence was presented in connection with the charges
made therein before the accused entered his plea of guilty. The accused is
entitled to the mitigating circumstance of plea of guilty. (People vs. Ortiz, No.
L-19585, Nov. 29, 1965, 15 SCRA 352, 354)
Plea of guilty to lesser offense than that charged, not

mitigating.
Plea of guilty to a lesser offense is not a mitigating circumstance,
because to be voluntary, the plea of guilty must be to the offense charged.
(People vs. Noble, 77 Phil. 93)
For voluntary confession to be appreciated as an extenuating
circumstance, the same must not only be made unconditionally but the
accused must admit to the offense charged, i.e., robbery with homicide in the
present case, and not to either robbery or homicide only. Hence, if the
voluntary confession is conditional or qualified, it is not mitigating. (People vs.
Gano, et al., G.R. No. 134373, February 28, 2001)
But when the defendant pleaded guilty, only manifesting that evident
premeditation alleged in the information did not attend the commission of the
crime, and when the court required the presentation of evidence on
premeditation the prosecution failed to prove it, the plea of guilty is
mitigating, because although the confession was qualified and introduction of
evidence became necessary, the qualification did not deny the defendant's guilt
and, what is more, was subsequently justified. It was not the defendant's fault
that aggravating circumstances were erroneously alleged in the information.
(People vs. Yturriaga, 86 Phil. 534, 539; People vs. Ong, No. L-34497, Jan. 30,
1975, 62 SCRA 174, 216)
Plea of guilty to the offense charged in the amended

information, lesser than that charged in the original
information, is mitigating.
Charged with double murder, the accused moved the Court to permit
him to withdraw his former plea of not guilty to be substituted Surrender and
Confession of Guilt
315
Par. 7
with that of guilty to the lesser crime of double homicide. The prosecution
moved to amend the information so as to change the crime from double
murder to double homicide. Both motions were granted by the court.
Held: The plea of guilty to the lesser offense charged in the amended
information is mitigating. (People vs. Intal, 101 Phil. 306, 307-308)
When the accused is charged with a grave offense, the court should take his
testimony in spite of his plea of guilty.
The trial court should "determine whether the accused really and truly
comprehended the meaning, full significance and consequences of his plea and
that the same was voluntarily and intelligently entered or given by the
accused." (People vs. Lacson, No. L-33060, Feb. 25, 1974, 55 SCRA 589, 593)
Because there is no law prohibiting the taking of testimony after a plea
of guilty, where a grave offense is charged, this Court has deemed such taking
of testimony the prudent and proper course to follow for the purpose of
establishing the guilt and the precise degree of culpability of the defendant.
(People vs. Saligan, No. L-35792, Nov.
29, 1973, 54 SCRA 190, 195; People vs. Domingo, Nos. L-30464-5,
Jan. 21,1974, 55 SCRA 237, 243-245)
Mandatory presentation of evidence in plea of guilty to

capital offense.
The Revised Rules of Criminal Procedure (Rule 116, Sec. 3) provides
that where the accused pleads guilty to a capital offense, that court shall
conduct a searching inquiry into the voluntariness and full comprehension of
the consequences of his plea and shall require the prosecution to prove his guilt
and the precise degree of culpability. The accused may present evidence in his
behalf.
Searching Inquiry.
The guidelines in the conduct of a searching inquiry are as follows:
(1) Ascertain from the accused himself (a) how he was brought into the
custody of the law; (b) whether he had the assistance of a competent counsel
during the custodial and preliminary investiga-
tions; and (c) under what conditions he was detained and interrogated during
the investigations. This is intended to rule out the possibility that the accused
316
Par. 7
has been coerced or placed under a state of duress either by actual threats of
physical harm coming from malevolent quarters or simply because of the
judge's intimidating robes.
(2) Ask the defense counsel a series of questions as to whether he
had conferred with, and completely explained to, the accused the meaning and
consequences of a plea of guilty.
(3) Elicit information about the personality profile of the
accused, such as his age, socio-economic status, and educational
background, which may serve as a trustworthy index of his capacity to give a
free and informed plea of guilty.
(4) Inform the accused of the exact length of imprisonment or
nature of the penalty under the law and the certainty that he will serve such
sentence. For not infrequently, an accused pleads guilty in the hope of a
lenient treatment or upon bad advice or because of promises of the authorities
or parties of a lighter penalty should he admit guilt or express remorse. It is
the duty of the judge to ensure that the accused does not labor under these
mistaken impressions because a plea of guilty carries with it not only the
admission of authorship of the crime proper but also of the aggravating
circumstances attending it, that increase punishment.
(5) Inquire if the accused knows the crime with which he is
charged and to fully explain to him the elements of the crime which is the basis
of his indictment. Failure of the court to do so would constitute a violation of
his fundamental right to be informed of the precise nature of the accusation
against him and a denial of his right to due process.
(6) All questions posed to the accused should be in a language
known and understood by the latter.
(7) The trial judge must satisfy himself that the accused, in
pleading guilty, is truly guilty. The accused must be required to narrate the
tragedy or reenact the crime or furnish its missing details. (People vs.
Gumimba, G.R. No. 174056, Feb. 27, 2007) Reasons why plea of
guilty is mitigating.
It is an act of repentance and respect for the law; it indicates a
317
Physical Defect Par. 8
moral disposition in the accused, favorable to his reform. (People vs. De la

Cruz, 63 Phil. 874, 876) Basis of paragraph 7.
The basis of the mitigating circumstances of voluntary surrender and
plea of guilty is the lesser perversity of the offender.
Plea of guilty is not mitigating in culpable felonies and in

crimes punished by special laws.
Art. 365, par. 5, of the Revised Penal Code, which prescribes the
penalties for culpable felonies, provides that "in the imposition of these
penalties, the courts shall exercise their sound discretion, without regard to
the rules prescribed in Art. 64." This last mentioned article states, among
other rules, that when there is a mitigating circumstance without any
aggravating circumstance, the penalty to be imposed is the minimum period of
the divisible penalty. (People vs. Agito, 103 Phil. 526, 529)
When the crime is punished by a special law, the court shall also exercise
its sound discretion, as Art. 64 is not applicable. The penalty prescribed by
special laws is usually not divisible into three periods. Art. 64 is applicable
only when the penalty has three periods.
Par. 8. — That the offender is deaf and dumb, blind or otherwise suffering
from some physical defect which thus restricts his means of
action, defense, or communication with his fellow beings.
Deaf and dumb.

In a criminal case charging robbery in an inhabited house, the accused
is deaf and dumb. Held: He is entitled to the mitigating circumstance of being
deaf and dumb under Article 13, paragraph 8. (People vs. Nazario, 97 Phil.
990)
Physical defect must restrict means of action, defense, or

communication with fellow beings.
Physical defect referred to in this paragraph is such as being armless,
cripple, or a stutterer, whereby his means to act, defend
Par. 9 Illness of the Offender
himself or communicate with his fellow beings are limited. (Albert)
318
Question: Does this paragraph apply when the deaf-mute or the blind is
educated?
This paragraph does not distinguish between educated and uneducated
deaf-mute or blind persons.
The Code considers them as being on equal footing.
Paragraph 8 of Art. 13 considers the fact that one suffering from
physical defect, which restricts one's means of action, defense, or
communication with one's fellow beings, does not have complete
freedom of action and, therefore, there is a diminution of that element of
voluntariness.
Par. 9. — Such illness of the offender as would diminish the exercise of

the will-power of the offender without however depriving him
of consciousness of his acts.
Requisites:
1. That the illness of the offender must diminish the exercise of his
will-power.
2. That such illness should not deprive the offender of consciousness
of his acts.
When the offender completely lost the exercise of will-

power, it may be an exempting circumstance.
When a person becomes affected either by dementia praecox or by manic
depressive psychosis, during the period of excitement, he has no control
whatsoever of his acts. (Opinion of Dr. Elias Domingo, cited in the case of
People vs. Bonoan, 64 Phil. 95)
In such case, the person affected, acted upon an irresistible homicidal
impulse.
In the Bonoan case, the Supreme Court found the accused demented at
the time he perpetrated the crime of murder arid acquitted the accused.
Illness of the Offender Par. 9
Does this circumstance include illness of the mind?
319
Question: Does this paragraph refer to the mental condition more or less
disturbed?
It is said that the foregoing legal provision refers only to diseases of
pathological state that trouble the conscience or will. (Albert)
Thus, this paragraph was applied to a mother who, under the influence
of a puerperal fever, killed her child the day following her delivery. (Dec. Sup.
Ct. Spain, Sept. 28, 1897)
But in the case of People vs. Francisco, 78 Phil. 694, it was held that this
paragraph applies to defendant who committed the crime while suffering from
some illness (of the body, the mind, the nerves, or the moral faculty).
Note that in accordance with the ruling in the above-mentioned case,
illness of the mind is included. It would seem that a diseased mind, not
amounting to insanity, may give place to mitigation.
Illness of the offender considered mitigating.

1. The mistaken belief of the accused that the killing of a witch was
for the public good may be considered a mitigating circumstance
for the reason that those who have obsession that witches are to be
eliminated are in the same condition as one who, attacked with a
morbid infirmity but still retaining consciousness of his acts, does
not have real control over his will. (People vs. Balneg, et al., 79
Phil. 805)
2. Example of illness of the nerves or moral faculty.
"Although she is mentally sane, we, however, are inclined to
extend our sympathy to the appellant because of her misfortunes
and weak character. According to the report she is suffering from
a mild behaviour disorder as a consequence of the illness she had in
early life. We are willing to regard this as a mitigating
circumstance under Art. 13, Revised Penal Code, either in
paragraph 9 or in paragraph 10." (People vs. Amit, 82 Phil. 820)
3. One who was suffering from acute neurosis which made him ill-
tempered and easily angered is entitled to this
Par. 10 Similar and Analogous Circumstances
mitigating circumstance, because such illness diminished his

exercise of will power. (People vs. Carpenter, C.A., G.R. No.
4168, April 22, 1940)
320
4. The fact that the accused is feebleminded warrants the finding in
his favor of the mitigating circumstance either under paragraph 8
or under paragraph 9 of Art. 13. (People vs. Formigones, 87 Phil.
658)
5. The evidence of accused-appellant shows that while there was
some impairment of his mental faculties, since he was shown to
suffer from the chronic mental disease called
schizo-affective disorder or psychosis, such impairment was not so
complete as to deprive him of his intelligence or the consciousness
of his acts. The schizo-affective disorder or psychosis of accused-
appellant may be classified as an illness which diminishes the
exercise of his will-power but without depriving him of the
consciousness of his acts. He may thus be credited with this
mitigating circumstance but will not exempt him from his criminal
liability. (People vs. Antonio, Jr., G.R. No. 144266, Nov. 27, 2002)
The circumstance in paragraph 9 of Art. 13 is mitigating because there
is a diminution of intelligence and intent.
Par. 10. — And, finally, any other circumstance of a similar nature and
analogous to those abovementioned.
Must be of similar nature and analogous to those

mentioned in paragraphs 1 to 9 of Art. 13.
This paragraph authorizes the court to consider in favor of the accused
"any other circumstance of a similar nature and analogous to those
mentioned" in paragraphs 1 to 9 of Art. 13.
Over 60 years old with failing sight, similar to over 70

years of age mentioned in paragraph 2.
The fact that the defendant was over 60 years old and with failing sight, is
analogous to circumstance No. 2 of Art. 13, as similar to Similar and
Analogous Circumstances Par. 10
the case of one over 70 years of age. (People vs. Reantillo and Ruiz,
C.A., G.R. No. 301, July 27, 1938)
321
Outraged feeling of owner of animal taken for ransom
analogous to vindication of a grave offense.
The accused is entitled to the mitigating circumstance of analogous to, if
not the same as, vindication of a grave offense committed by the deceased
where the latter took away the carabao of the accused and held it for ransom,
and thereafter failed to fulfill his promise to pay its value after the carabao
had died. (People vs. Monaga, No. L-38528, Nov. 19, 1982,118 SCRA 466, 476)
Outraged feeling of creditor, similar to passion and

obfuscation mentioned in paragraph 6.
A person who killed his debtor who had tried to escape and refused to
pay his debt is entitled to mitigating circumstance similar to passion and
obfuscation. (People vs. Merenillo, C.A., 36 O.G. 2283)
Impulse of jealous feeling, similar to passion and

obfuscation.
The fact that the accused committed slander by charging the offended
party with being the concubine of the husband of the accused under the
impulse of a jealous feeling apparently justified, though later discovered to be
unfounded, because the complainant, as verified by physical examination, was
a virgin, may be taken, under Article 13, paragraph 10, of the Revised Penal
Code, as a mitigating circumstance
similar to passion and obfuscation. (People vs. Ubengen, C.A., 36 O.G. 763)
It is not difficult to see that Idloy's boxing appellant during a dance and
in the presence of so many people, and he, an ex-soldier and exmember of a
military organization and unit, well-known and respected, undoubtedly
produced rancour in the breast of Libria who must have felt deeply insulted;
and to vindicate himself and appease his self-respect, he committed the crime.
The mitigation may well be found under paragraph
10 of the same article. (People vs. Libria, 95 Phil. 389)
Manifestations of Battered Wife Syndrome, analogous to

an illness that diminishes the exercise of will power.
The cyclical nature and the severity of the violence inflicted upon
appellant resulted in "cumulative provocation which broke down her
Par. 10 Similar and Analogous Circumstances
psychological resistance and natural self-control," "psychological paralysis,"

and "difficulty in concentrating or impairment of memory."
322
Based on the explanations of the expert witnesses, such manifestations
were analogous to an illness that diminished the
exercise by appellant of her will power without, however, depriving her of
consciousness of her acts. There was, thus, a resulting diminution of her
freedom of action, intelligence or intent. Pursuant to paragraphs 9 and 10 of
Article 13 of the Revised Penal Code, this circumstance should be taken in her
favor and considered as a mitigating factor. (People vs. Genosa, G.R. No.
135981, Jan. 14, 2004)
Esprit de corps, similar to passion and obfuscation.

Mass psychology and appeal to esprit de corps is similar to passion or
obfuscation. In this case, many of the soldiers who took part in the killing of
the deceased responded to the call and appeal of their lieutenant who urged
them to avenge the outrage committed by the deceased who had summarily
ejected certain soldiers from the dance hall. They considered the act of the
deceased a grave insult against their organization. (People vs. Villamora, 86
Phil. 287)
Voluntary restitution of stolen property, similar to

voluntary surrender mentioned in paragraph 7.
On the other hand, voluntary restitution of the property stolen by the
accused or immediately reimbursing the amount malversed (People vs.
Luntao, C.A., 50 O.G. 1182) is a mitigating circumstance as analogous to
voluntary surrender.
The act of testifying for the prosecution, without previous discharge, by
Lorenzo Soberano (one of the accused) should be considered in his favor as a
mitigating circumstance analogous to a plea of guilty. (People vs. Navasca, 76
SCRA 72)
Extreme poverty and necessity, similar to incomplete

justification based on state of necessity.
The accused, on account of extreme poverty and of the economic
difficulties then prevailing, was forced to pilfer two sacks of paper valued at
f*10.00 from the Customhouse. He sold the two sacks of paper for r*2.50.
Held: The right to life is more sacred than a mere property right. That is not
to encourage or even countenance theft, Similar and Analogous Circumstances
Par. 10
but merely to dull somewhat the keen and pain-producing edges of the stark
realities of life. (People vs. Macbul, 74 Phil. 436, 438-
323
439)
State of necessity is a justifying circumstance under Art. 11, paragraph
4. Incomplete justification is a mitigating circumstance under paragraph 1 of
Article 13.
Extreme poverty may mitigate a crime against property, such as theft,
but not a crime of violence such as murder. (People vs. Agustin, No. L-18368,
March 31,1966, 16 SCRA 467, 474-475)
But it is not mitigating where the accused had impoverished himself and
lost his gainful occupation by committing crimes and not driven to crime due
to want and poverty. (People vs. Pujinio, No. L-21690, April 29, 1969, 27
SCRA 1185,1189-1190)
Testifying for the prosecution, analogous to plea of guilty.

The act of the accused of testifying for the prosecution, without previous
discharge, is a mitigating circumstance analogous to a plea of guilty. (People
vs. Navasca, No. L-28107, March 15,1977, 76 SCRA 70, 81)
Killing the wrong man is not mitigating.

Neither do we believe that the fact that he made a mistake in killing the
wrong man should be considered as a mitigating circumstance. (People vs.
Gona, 54 Phil. 605, 606-607) Not analogous mitigating
circumstance.
In parricide, the fact that the husband of the accused was unworthy or
was a rascal and a bully and was bad (People vs. Canja, 86 Phil. 518, 521), or
that the victim was a bad or quarrelsome person (People vs. Fajardo, C.A., 36
O.G. 2256) is not a circumstance of a similar nature and analogous to any of
those mentioned in the preceding paragraphs of Art. 13.
The accused, who was charged with the crime of falsification, pleaded
guilty and invoked as mitigating circumstance the lack of irreparable material
damage. Held: This is not recognized as a mitigating circumstance in the
Revised Penal Code. Neither is it among those which may be considered as
similar in nature and
Personal Nature
analogous to those expressly prescribed as mitigating circumstances.

(People vs. Dy Pol, 64 Phil. 563, 565)
324
Not resisting arrest, not analogous to voluntary
surrender.
Yielding to arrest without the slightest attempt to resist is not analogous
to voluntary surrender. (People vs. Rabuya, No. L-30518, Nov. 7, 1979, 94
SCRA 123, 138)
The condition of running amuck is not mitigating.

The Revised Penal Code enumerates the circumstances which mitigate
criminal liability, and the condition of running amuck is not one of them, or
one by analogy. The defense contended that running amuck is a cult among
the Moros that is age-old and deeply rooted. Insofar as they are applicable,
mitigating circumstances must be applied alike to all criminals be they
Christians, Moros or Pagans. (People vs. Salazar, 105 Phil. 1058)
Mitigating circumstances which are personal to the

offenders.
Mitigating circumstances which arise (1) from the moral attributes of
the offender, or (2) from his private relations with the offended party, or (3)
from any other personal cause, shall only serve to mitigate the liability of the
principals, accomplices, and accessories as to whom such circumstances are
attendant. (Art. 62, par. 3)
Mitigating circumstances which arise from the moral attributes

of the offender.
A and B killed C, A acting under an impulse which produced
obfuscation. The circumstance of obfuscation arose from the moral attribute
of A and it shall mitigate the liability of A only. It shall not mitigate the
liability of B.
Mitigating circumstances which arise from the private relations of the offender
with the offended party.
A, son of B, committed robbery against the latter, while C, a stranger,
bought the property taken by A from B, knowing that the property was the
effect of the crime of robbery. The circumstance of relationship (Art. 15) arose
from the private relation of A with B and it shall mitigate the liability of A
only. It shall not mitigate the liability of C, an accessory. (Art. 19)
325
Art. 13 AGGRAVATING CIRCUMSTANCES
Definition
Mitigating circumstances which arise from any other personal cause.

A, 14 years old and acting with discernment, inflicted serious physical
injuries on C. B, seeing what A had done to C, kicked the latter, thereby
concurring in the criminal purpose of A and cooperating with him by
simultaneous act. (Art. 18) The circumstance of minority arose from other
personal cause and it shall mitigate the liability of A only. It shall not mitigate
the liability of B, an accomplice.
Note: It seems that all mitigating circumstances are personal to the

offenders.
Circumstances which are neither exempting nor mitigating.
1. Mistake in the blow or aberratio ictus, for under Art. 48, there is a
complex crime committed. The penalty is even higher.
2. Mistake in the identity of the victim, for under Art. 4, par. 1, the
accused is criminally liable even if the wrong done is different
from that which is intended. See Art. 49 as to its effect on the
penalty.
3. Entrapment of the accused.
4. The accused is over 18 years of age. If the offender is over 18 years

old, his age is neither exempting nor mitigating.
(People vs. Marasigan, 70 Phil. 583)
5. Performance of righteous action.

The performance of righteous action, no matter how
meritorious it may be, is not justifying, exempting, or mitigating
circumstance in the commission of wrongs, and although the
accused had saved the lives of a thousand and one persons, if he
caused the killing of a single human being, he is, nonetheless,
criminally liable. (People vs. Victoria, 78 Phil. 122)
IV. Aggravating Circumstances.
1. Definition
Aggravating circumstances are those which, if attendant in
the commission of the crime, serve to increase
326
AGGRAVATING CIRCUMSTANCES Art. 13
Basis and Kinds
the penalty without, however, exceeding the maximum of the

penalty provided by law for the offense.
2. Basis
They are based on the greater perversity of the offender
manifested in the commission of the felony as shown by:
(1) the motivating power itself, (2) the place of commission, (3) the
means and ways employed, (4) the time, or (5) the personal
circumstances of the offender, or of the offended party.
Four kinds of aggravating circumstances.

1. Generic — Those that can generally apply to all crimes.
Example — Dwelling, nighttime, or recidivism.
In Art. 14, the circumstances in paragraphs Nos. 1, 2, 3
(dwelling), 4, 5, 6, 9,10,14,18,19, and 20, except "by means of
motor vehicles," are generic aggravating circumstances.
2. Specific — Those that apply only to particular crimes.

Example — Ignominy in crimes against chastity or cruelty
and treachery in crimes against persons.
In Art. 14, the circumstances in paragraphs Nos. 3 (except
dwelling), 15,16,17 and 21 are specific aggravating circumstances.
3. Qualifying — Those that change the nature of the crime.

Example — Alevosia (treachery) or evident premeditation
qualifies the killing of a person to murder.
Art. 248 enumerates the qualifying aggravating
circumstances which qualify the killing of person to murder.
4. Inherent — Those that must of necessity accompany the
commission of the crime. (Art. 62, par. 2)
Example — Evident premeditation is inherent in robbery,
theft, estafa, adultery and concubinage.
Distinctions Between Qualifying and Generic
327
Qualifying aggravating circumstance distinguished from
generic aggravating circumstance.
1. The effect of a generic aggravating circumstance, not offset by any
mitigating circumstance, is to increase the penalty which should be
imposed upon the accused to the maximum period, but without
exceeding the limit prescribed by law; while that of a qualifying
circumstance is not only to give the crime its proper and exclusive name
but also to place the author thereof in such a situation as to deserve no
other penalty than that specially prescribed by law for said crime.
(People vs. Bayot, 64 Phil. 269, 273)
2. A qualifying aggravating circumstance cannot be offset by a mitigating
circumstance; a generic aggravating circumstance may be compensated
by a mitigating circumstance.
3. A qualifying aggravating circumstance to be such must be alleged in the
information. If it is not alleged, it is a generic aggravating circumstance
only.
Aggravating circumstance not alleged.

An aggravating circumstance, even if not alleged in the information,
may be proved over the objection of the defense. (People vs. Gabitanan, C.A.,
43 O.G. 3209; People vs. Martinez Godinez, 106 Phil. 606-607) This is true
only as regards a generic aggravating circumstance. As regards a qualifying
aggravating circumstance, the same must be alleged in the information because
it is an integral part of the offense.
Generic aggravating circumstances, even if not alleged in the
information, may be proven during the trial over the objection of the defense
and may be appreciated in imposing the sentence. Such evidence merely forms
part of the proof of the actual commission of the offense and does not violate
the constitutional right of the accused to be informed of the nature and cause
of accusation against him. (People vs. Ang, 139 SCRA 115, 121, L-62833, Oct.
8, 1985, citing earlier cases)
Where, in an information for simple theft, the qualifying circumstance
of grave abuse of confidence has not been alleged, said circumstance cannot
qualify the crime committed but must be regarded
Effect and Penalty
only as a generic aggravating circumstance. (People vs. Abella, C.A., 45 O.G.

1802)
328
If not alleged in the information, treachery is only generic aggravating
circumstance.
What is not clear to us is, why the prosecuting attorney did not in this
case charge the crime of murder, instead of mere homicide. Although this
circumstance of treachery is proven, inasmuch as it was not expressly alleged
in the information, it may be used only as an aggravating circumstance but
not to qualify the killing as murder. (People vs. Alcantara, C.A., 45 O.G. 3451;
People vs. Jovellano, No.
L-32421, March 27, 1974, 56 SCRA 156, 163)
Treachery is merely a generic aggravating circumstance when not
alleged in the information but just proven at the trial. (People vs. Estillore, No.
L-68459, March 4, 1986, 141 SCRA 456,
461; People vs. Cantre, G.R. No. 70743, June 4, 1990, 186 SCRA 76, 79)
Aggravating circumstances which do not have the effect

of increasing the penalty.
1. Aggravating circumstances (a) which in themselves constitute a crime
specially punishable by law, or (b) which are included by the law in
denning a crime and prescribing the penalty therefor shall not be taken
into account for the purpose of increasing the penalty. (Art. 62, par. 1)
Examples:
a. "That the crime be committed by means of xxx fire, x x x
explosion" (Art. 14, par. 12) is in itself a crime of arson (Art. 321)
or crime involving destruction. (Art. 324) It is not to be considered
to increase the penalty for the crime of arson or for the crime
involving destruction.
b. "That the act x x x be committed in the dwelling of the offended
party" (Art. 14, par. 3) or "that the crime be committed after an
unlawful entry" (Art. 14, par. 18), or "that as a means to the
commission of a crime a wall, roof, floor, door, or window be
broken (Art. 14, par. 19) is included by Art. 299 in denning
robbery in an inhabited house. It shall Application
not be taken into account for the purpose of increasing the penalty
for that kind of robbery.
2. The same rule shall apply with respect to any aggravating circumstance
inherent in the crime to such a degree that it must of necessity
accompany the commission thereof. (Art. 62, par. 2) Examples:
329
a. Evident premeditation is inherent in theft, robbery, estafa,
adultery and concubinage.
b. Taking advantage of public position is inherent in crimes where
the offenders, who are public officers, committed the crime in the
exercise of their functions, such as in bribery, malversation, etc.
Aggravating circumstances which are personal to the

offenders.
Aggravating circumstances which arise: (a) from the moral attributes of
the offender, or (b) from his private relations with the offended party, or (c)
from any other personal cause, shall only serve to aggravate the liability of the
principals, accomplices, and accessories as to whom such circumstances are
attendant. (Art. 62, par. 3)
Examples:
1. A, with evident premeditation, gave B Pl.OOO to kill C. B
immediately killed C. Evident premeditation is an aggravating
circumstance which arises from the moral attribute of A. It shall
serve to aggravate only the liability of A, but not that of B.
2. A, stepson of B, killed the latter. C, knowing that A killed B
without justification, buried the dead body of B to prevent the
discovery of the crime. The private relation of A with B shall
serve to aggravate only the liability of A. It shall not serve to
aggravate the liability of C, the accessory. (Art. 19, par. 2)
3. A, who was previously convicted by final judgment of theft and
served sentence therefor, and B committed robbery. Both were
prosecuted and found guilty after trial. Upon his conviction for
robbery, A was a recidivist. Recidivism
Aggravating Circumstances Not Presumed
is an aggravating circumstance which arises from personal

cause. It shall serve to aggravate only the liability of A, but not
that of B.
Aggravating circumstances which depend for their

application upon the knowledge of the offenders.
The circumstances which consist (1) in the material execution of the act,
or (2) in the means employed to accomplish it, shall serve to aggravate the
330
liability of those persons only who had knowledge of them at the time of the
execution of the act or their cooperation therein. (Art. 62, par. 4)
Illustrations:
1. In his house, A ordered B to kill C. A and B did not talk about the
manner C would be killed. B left the house of A and looked for C.
B found C and killed the latter with treachery. (Art. 14, par. 16)
The aggravating circumstance of treachery consists in the
material execution of the act. Since A had no knowledge of it,
treachery shall only aggravate the liability of B.
2. A ordered B and C to kill D, instructing them to wait until
nighttime so that the crime could be committed with impunity. B
and C killed D at nighttime. Although A did not take direct part
in the commission of the crime, the aggravating circumstance of
nighttime shall also aggravate his liability, because he had
knowledge of it at the time of the execution of the act by B and C.
Aggravating circumstances not presumed.

An aggravating circumstance should be proved as fully as the crime
itself in order to increase the penalty. (People vs. Barrios, No. L-34785, July
30,1979,92 SCRA 189,196, citing People vs. Marcina,
77 SCRA 238, 246; People vs. Almario, G.R. No. 69374, March 16,
1989, 171 SCRA 291, 302)
331
Chapter Four
CIRCUMSTANCES WHICH AGGRAVATE CRIMINAL
LIABILITY
Art. 14. Aggravating circumstances. — The following are aggravating

circumstances:
1. That advantage be taken by the offender of his public position.
2. That the crime be committed in contempt of or with insult to the public
authorities.
3. That the act be committed with insult or in disregard of the respect due
the offended party on account of his rank, age, or sex, or that it be committed in
the dwelling of the offended party, if the latter has not given provocation.
4. That the act be committed with abuse of confidence or obvious
ungratefulness.
5. T h a t t h e c r i m e be c o m m i t t e d in t h e p a l a c e of the Chief
Executive, or in his presence, or w h e r e public authorities are engaged in the
discharge of their duties or in a place dedicated to religious worship.
6. That the crime be committed in the nighttime or in an uninhabited
place, or by a band, whenever such circumstances may facilitate the commission
of the offense.
Whenever more than three armed malefactors shall have acted together in
the commission of an offense, it shall be deemed to have been committed by a
band.
7. That the crime be committed on the occasion of a conflagration,
shipwreck, earthquake, epidemic, or other calamity or misfortune.
8. That the crime be committed with the aid of armed men or persons w h
o insure or afford impunity.
333
Codal Provisions
9. That the accused is a recidivist.

A recidivist is one who, at the time of his trial for one crime, shall have
been previously convicted by final judgment of another crime embraced in the
same title of this Code.
332
10. That the offender has been previously punished for an offense
to which the law attaches an equal or greater penalty or for two or more crimes
to which it attaches a lighter
penalty.
11. That the crime be committed in consideration of a price,
reward, or promise.
12. That the crime be committed by means of inundation, fire,
poison, explosion, stranding of a vessel or intentional damage thereto, derailment
of a locomotive, or by the use of any other artifice involving great waste and
ruin.
13. That the act be committed with evident premeditation.
14. That craft, fraud, or disguise be employed.

15. That advantage be taken of superior strength, or means be
employed to w e a k e n the defense.
16. That the act be committed with treachery (alevo-

sia).
There is treachery w h e n the offender commits any of the crimes against
the person, employing means, methods or forms in the execution thereof w h i c h
tend directly and specially to insure its execution, without risk to himself arising
from the defense w h i c h the offended party might make.
17. That means be employed or circumstances brought about w h i
c h add ignominy to the natural effects of the act.
18. That the crime be committed after an unlawful entry.

There is an unlawful entry w h e n an entrance is effected by a way not
intended for the purpose.
19. That as a m e a n s to the commission of a crime a wall, roof,
floor, door, or w i n d o w be broken.
Advantage Taken of Public Position Par. 1
20. That the crime be committed with the aid of persons under
fifteen years of age, or by means of motor vehicle, airships, or other similar
means.
21. That the w r o n g done in the commission of the crime be
deliberately augmented by causing other wrong not necessary for its
commission.
To be appreciated, qualifying and aggravating

circumstances must be alleged in the information.
Pursuant to the 2000 Revised Rules of Criminal Procedure, every
Complaint or Information must state not only the qualifying but also the
aggravating circumstances. This rule may be given retroactive effect in the light
of the well-established rule that statutes regulating the procedure of the courts
will be construed as applicable to actions pending and undetermined at the time
of their passage. The aggravating circumstances of evident premeditation,
dwelling and unlawful entry, not having been alleged in the Information, may
not now be appreciated to enhance the liability of accused-appellant. (People vs.
Antonio, G.R. No. 144266, November 27, 2002)
If not alleged, they may still be considered in the award of

damages.
Although the aggravating circumstances in question cannot be appreciated
for the purpose of fixing a heavier penalty in this case, they should, however, be
considered as bases for the award of exemplary damages, conformably to
current jurisprudence. (People vs. Evina, G.R. Nos. 124830-31, June 27, 2003)
Par. 1. — That advantage be taken by the offender of his public position.
Basis of this aggravating circumstance.

This is based on the greater perversity of the offender, as shown by the
personal circumstance of the offender and also by the means used to secure the
commission of the crime.
335
Par. 1 Advantage Taken of Public Position
Applicable only when the offender is a public officer.

The aggravating circumstance that advantage be taken by the offender of
his public position applies only when the person commit-
ting the crime is a public officer who takes advantage of his public position.
Meaning of "advantage be taken by the offender of his

public position."
The public officer must use the influence, prestige or ascendancy which his
office gives him as the means by which he realizes his purpose. The essence of the
334
matter is presented in the inquiry, "Did the accused abuse his office in order to
commit the crime?" (U.S. vs. Rodriguez, 19 Phil. 150, 156-157)
Examples:
a. The accused took advantage of his public position. He could not have
maltreated the victim if he was not a policeman on guard duty.
Because of his position, he had access to the cell where the victim
was confined. The prisoner was under his custody. (People vs. Ural,
No. L-30801, March
27, 1974, 56 SCRA 138, 145)
b. There is abuse of public position where a police officer in the course
of investigation of a charge against him for grave threats shot the
complainant in a treacherous manner.
(People vs. Reyes, No. L-33154, Feb. 27, 1976, 69 SCRA
474, 480-481)
c. Advantage of public position is present where the accused used their
authority as members of the police and constabulary to disarm the
victim before shooting him. (People vs. Asuncion,
G.R. No. 83870, Nov. 14,1989,179 SCRA 396, 402)
This aggravating circumstance is not present when a

Congressman offered resistance to a peace officer.
In the case of a Congressman who offered resistance to his captor upon
being surprised in a gambling house, this aggravating circumstance is not
present. (People vs. Veloso, 48 Phil. 169,183) The reason for this ruling is that the
Congressman did not take advantage of the influence or reputation of his office.
Advantage Taken of Public Position Par. 1
This aggravating circumstance is present when a

councilor collects fines and misappropriates them.
U.S. vs. Torrida

(23 Phil. 189)
Facts: The accused, shortly after entering upon his duties as

councilor of the town of Aparri, ordered that deaths of all large animals
must be reported to him as councilman. As a result of this instruction,
the owners of several such animals were induced to pay the accused
supposed fines on the belief that such were required by a municipal
ordinance. He spent the money paid to, and received by him as fines.
Held: The fact that the accused was councilor at the time placed
him in a position to commit these crimes. If he were not a councilor he
could not have induced the injured parties to pay these alleged fines. It
was on account of his being councilor that the parties believed that he
had the right to collect fines and it was for this reason that they made the
payments. It is true that he had no right to either impose or collect any
fine whatsoever and it is likewise true that a municipal councilor is not
an official designated by law to collect public fines, but these facts do not
destroy or disprove the important fact that the accused did, by taking
advantage of his public position, deceive and defraud the injured parties
out of the money they paid him.
Note: The crime committed by Torrida is estafa by means of
deceit. (Art. 315, par. 2)
When the public officer did not take advantage of the

influence of his position, this aggravating circumstance is
not present.
U.S. vs. Dacuycuy

(9 Phil. 84)
Facts: Thirty-nine (39) persons requested the accused, then a

councilor, to purchase cedulas for them giving him P39.00. He took only
16 cedulas, and spent the rest of the money.
Held: When a public officer commits a common crime
independent of his official functions and does acts that are not
336
connected with the duties of his office, he should be punished as a
private individual without this aggravating circumstance.
Note: In this case, Dacuycuy did not avail himself of the influence,
prestige or ascendancy which his position carried with it, when
Par. 1 Advantage Taken of Public Position
he committed the crime of estafa with abuse of confidence. (Art. 315, par. 1) He
received the money in his private capacity. He was requested
by the people to buy cedula certificates for them.
Likewise, the mere fact that the defendant, a justice of the peace,
misappropriated the money he received from the debtor in an extra-
judicial agreement under obligation to turn it over to the creditor, does not
aggravate his liability, inasmuch as no legal proceedings were pending at the
time of this agreement and the debt was not reduced to judgment. He did not
take advantage of his official position in the commission of the crime of estafa.
(U.S. vs. Estabaya, 36 Phil. 64, 67)
There must be proof that the accused took advantage of his public position.
It is not shown that accused-appellant took advantage of his position as
confidential agent of Mayor Claudio in shooting the victim, or that he used his
"influence, prestige or ascendancy" in killing the deceased. Accused-appellant
could have been shot by Bayona without having occupied the said position.
Thus, in the absence of proof that advantage was taken by accused-appellant
of his being a confidential agent, the aggravating circumstance of abuse of
public position could not be properly appreciated against him. (People vs.
Ordiales, No. L-30956, Nov. 23, 1971, 42 SCRA 238, 245-246)
Peace officers taking advantage of their public positions.

A policeman in uniform who abducted a girl by availing himself of his
position (U.S. vs. Yumul, 34 Phil. 169,175), or the chief of police who, during
the search of a boat by means of intimidation, obtained money from the crew
(People vs. Cerdena, 51 Phil. 393, 394-395), or a special agent of the military
police who committed robbery with homicide with the gun which he had been
authorized to carry as a peace officer (People vs. Madrid, 88 Phil. 1,15),
committed the crime by taking advantage of his public position.
In the case of Fortuna vs. People, G.R. No. 135784, Dec. 4,
2000, it was held that "[t]he mere fact that the three (3) accused were all police
officers at the time of the robbery placed them in a position to perpetrate the
offense. If they were not police officers, they could not have terrified the
337
Montecillos into hording the mobile Advantage Taken of Public Position
Par. 1
patrol car and forced them to hand over their money. Precisely it was on
account of their authority that the Montecillos believed that Mario had in fact
committed a crime and would be brought to the police station for investigation
unless they gave them what they demanded."
Wearing uniform is immaterial in certain cases.

Although he was off-duty and there is evidence that he was in civilian
clothes at the time, it is nonetheless obvious that knowing that the offended
party was aware of his being a policeman, and sought to impose, illegally, his
authority as such, the penalty provided by law must be meted out in its
maximum period. (People vs. Tongco, 3 C.A.
Rep. 1071)
The mere fact that he was in fatigue uniform and had army rifle at the
time is not sufficient to establish that he misused his public position in the
commission of the crimes. (People vs. Pantoja, No. L-
18793, Oct. 11, 1968, 25 SCRA 468, 471-472)
Failure in official duties is tantamount to abusing of office.

But even if defendant did not abuse his office, if it is proven that he has
failed in his duties as such public officer, this circumstance would warrant the
aggravation of his penalty.
Thus, the fact that defendant was the vice-president of a town at the
time he voluntarily joined a band of brigands made his liability greater. (U.S.
vs. Cagayan, 4 Phil. 424, 426)
Not aggravating when it is an integral element of, or

inherent in, the offense.
This circumstance, taking advantage of public position, cannot be taken
into consideration in offenses where taking advantage of official-position is
made by law an integral element of the crime, such as in malversation under
Art. 217, or in falsification of document committed by public officers under
Art. 171. (People vs. Tevez, 44 Phil. 275, 277)
Taking advantage of public position is inherent in the case of
accessories under Art. 19, par. 3, and in crimes committed by public officers.
(Arts. 204 to 245)
338
Par. 2 Contempt or Insult to Public Authorities
Not aggravating if accused could have perpetrated the

crime without occupying police position.
In this case, there was no showing that accused-appellant took
advantage of his being a policeman to shoot Jelord Velez or that he
used his "influence, prestige or ascendancy" in killing the victim. Accused-
appellant could have shot Velez even without being a policeman. In other
words, if the accused could have perpetrated the crime even without
occupying his position, there is no abuse of public position. In People vs.
Herrera, the Court emphatically said that the mere fact that accused-appellant
is a policeman and used his government issued .38 caliber revolver to kill is
not sufficient to establish that he misused his public position in the commission
of the crime. (People vs. Villamor, G.R. Nos. 140407-08, January 15, 2002)
Par. 2. — That the crime be committed in contempt of or with insult to the

public authorities.

This is based on the greater perversity of the offender, as shown by his
lack of respect for the public authorities.
Requisites of this circumstance:

1. That the public authority is engaged in the exercise of his
functions.
2. That he who is thus engaged in the exercise of said functions is not
the person against whom the crime is committed. (U.S. vs.
Rodriguez, 19 Phil. 150,156; People vs. Siojo, 61 Phil. 307, 317)
3. The offender knows him to be a public authority.

4. His presence has not prevented the offender from committing the
criminal act.
Example of this aggravating circumstance:

A and B are quarreling on a street and the municipal mayor, upon
passing by, attempts to separate them to stop the quarrel. Notwithstanding the
intervention and the presence of the mayor, A and Contempt or Insult to
Public Authorities Par. 2
339
B continued to quarrel until A succeeds in killing B. In this case, A
commits the crime of homicide with the aggravating circumstance of a "in
contempt of or with insult to the public authority."
Meaning of "public authority."

A public authority, sometimes also called a person in authority, is a
public officer who is directly vested with jurisdiction, that is, a public officer
who has the power to govern and execute the laws. The councilor, the mayor,
the governor, etc., are persons in authority. The barangay captain and
barangay chairman are also persons in authority. (Art. 152, as amended by
P.D. No. 1232, Nov. 7, 1977)
Not applicable when crime is committed in the presence of

an agent only.
Paragraph 2 of Art. 14 was not applied in a case where the crime was
committed in the presence of the chief of police of a town, because he is not a
public authority, but an agent of the authorities. (People vs. Siojo, 61 Phil. 307,
311, 317; People vs. Verzo, No. L-22517, Dec. 26, 1967, 21 SCRA 1403, 1410)
An agent of a person in authority is "any person who, by direct
provision of law or by election or by appointment by competent authority, is
charged with the maintenance of public order and the protection and security
of life and property, such as barrio councilman, barrio policeman and
barangay leader, and any person who comes to the aid of persons in
authority." (Art. 152, as amended by BP Big. 873)
The crime should not be committed against the public

authority.
If the crime is committed against a public authority while he is in the
performance of his official duty, the offender commits direct assault (Art. 148)
without this aggravating circumstance, because it is not a crime committed "in
contempt of or with insult" to him, but a crime directly committed against
him.
This rule was not followed in the case of People vs. Santok,
G.R. No. L-18226, May 30, 1963, where it was held that the crime committed
was homicide with the aggravating circumstance of the commission of the
offense in contempt of the public authority, since
340
of Offended Party
the deceased was shot while in the performance of his official duty as barrio
lieutenant.
The accused should have been prosecuted for and convicted of a
complex crime of homicide with direct assault (Art. 249, in relation to Art. 48
and Art. 148, Revised Penal Code), without the aggravating circumstance.
Knowledge that a public authority is present is essential.

Lack of knowledge on the part of the offender that a public authority is
present indicates lack of intention to insult the public authority.
Thus, if A killed B in the presence of the town mayor, but A did not
know of the presence of the mayor, this aggravating circumstance should not
be considered against A.
Presence of public authority has not prevented offender

from committing the crime.
An offense may be said to have been committed in contempt of a public
authority when his presence, made known to the offender, has not prevented
the latter from committing the criminal act.
Par. 3. — That the act be committed (1) with insult or in disregard of the
respect due the offended party on account of his (a) rank, (b)
age, or (c) sex, or (2) that it be committed in the dwelling of
the offended party, if the latter has not given provocation.
When all the four aggravating circumstances are present,

must they be considered as one?
Four circumstances are enumerated in this paragraph, which can be
considered single or together. If all the four circumstances are present, they
have the weight of one aggravating circumstance only. (Albert) But see the
case of People vs. Santos, 91 Phil. 320, cited under paragraph 6, Art. 14.
The aggravating circumstances of sex and age of the injured party as
well as those of dwelling place and nighttime must also be taken into account.
(People vs. Taga, 53 Phil. 273)
Disregard of Rank, Age, Sex or Dwelling Par. 3 of Offended
Party
341
Par. 3 Disregard of Rank, Age, Sex or Dwelling
Basis of these aggravating circumstances.
These circumstances are based on the greater perversity of the offender,
as shown by the personal circumstances of the offended party and the place of
the commission of the crime.
Applicable only to crimes against persons or honor.

This circumstance (rank, age or sex) may be taken into account only in
crimes against persons or honor.
Thus, in the case of the robbery of a thing belonging to the
President, the aggravating circumstance of disregard of respect due the
offended party cannot be taken into account, because the mere fact that the
thing belongs to the President does not make it more valuable than the things
belonging to a private person.
Disregard of the respect due the offended party on account of his rank,
age or sex may be taken into account only in crimes against persons or honor,
when in the commission of the crime, there is some insult or disrespect to
rank, age or sex. It is not proper to consider this aggravating circumstance in
crimes against property. Robbery with homicide is primarily a crime against
property and not against persons. Homicide is a mere incident of the robbery,
the latter being the main purpose and object of the criminal. (People vs. Pagal,
No. L-32040, Oct. 25, 1977, 79 SCRA 570, 576-577)
Meaning of "with insult or in disregard."

It is necessary to prove the specific fact or circumstance, other than that
the victim is a woman (or an old man or one of high rank), showing insult or
disregard of sex (or age or rank) in order that it may be considered as
aggravating circumstance. (People vs. Valencia, C.A., 43 O.G. 3740) There
must be evidence that in the commission of the crime, the accused deliberately
intended to offend or insult the
sex or age of the offended party. (People vs. Mangsant, 65 Phil. 548,
550-551)
The circumstance of old age cannot be considered aggravating. There
was no evidence that the accused deliberately intended to offend or insult the
age of the victim. (People vs. Diaz, 70 O.G. 4173, citing People vs. Gervacio,
24 SCRA 960; People vs. Mangsant, 65
Phil. 548; People vs. Limaco, 88 Phil. 35, 44)
342
of Offended Party
With insult or in disregard of the respect due the offended

party on account —
1. of the rank of the offended party.
There must be a difference in the social condition of the
offender and the offended party.
For example, a private citizen who attacked and injured a
person in authority, or a pupil who attacked and injured his
teacher (U.S. vs. Cabiling, 7 Phil. 469, 474), the act not constituting
direct assault under Art. 148 of the Revised Penal Code.
Also, killing a judge because he was strict or because of
resentment which the accused harbored against him as a judge,
constitutes the aggravating circumstance of disregard of the
respect due the offended party on account of his rank. (People vs.
Valeriano, 90 Phil. 15, 34-35)
Also, an attempt upon the life of a general of the Philippine
Army is committed in disregard of his rank. (People vs. Torres,
G.R. No. L-4642, May 29,1953)
Rank was aggravating in the following cases: the killing of a
staff sergeant by his corporal; the killing of the Assistant Chief of
Personnel Transaction of the Civil Service Commission by a clerk
therein; the murder by a pupil of his teacher; the murder of a
municipal mayor; the murder of a city chief of police by the chief
of the secret service division; assault upon a 66-year-old CFI (now
RTC) judge by a justice of the peace (now municipal judge); the
killing of a consul by a mere chancellor; and the killing of an army
general. (People vs. Rodil, No. L-35156, Nov. 20,
1981,109 SCRA 308, 330-331)
Meaning of rank.
"Rank" refers to a high social position or standing as a grade
in the armed forces; or to a graded official standing or social
position or station; or to the order or place in which said officers
are placed in the army and navy in relation to others; or to the
designation or title of distinction conferred upon an officer in
order to fix his relative position in refer-
343
Disregard of Rank, Age, Sex or Dwelling of Par. 3
Offended Party
ence to other officers in matters of privileges, precedence, and sometimes
of command or by which to determine his pay and emoluments as in the
case of army staff officers; or to a grade or official standing, relative
position in civil or social life, or in any scale of comparison, status, grade,
including its grade, status or scale of comparison within a position.
(People vs. Rodil, supra, at 330)
Proof of fact of disregard and deliberate intent to insult required.
Disregard of the rank of the victim who was a barangay captain
cannot be appreciated as an aggravating circumstance there being no
proof of the specific fact or circumstance that the accused disregarded
the respect due to the offended party, nor does it appear that the accused
deliberately intended to insult the rank of the victim as barrio captain.
(People vs. Talay, No. L-24852, Nov. 28,
1980, 101 SCRA 332, 347)
2. of the age of the offended party.

This circumstance is present when the offended person, by reason
of his age, could be the father of the offender. (Viada, 1 Cod. Pen. 326;
U.S. vs. Esmedia, 17
Phil. 260, 264-265; U.S. vs. Reguera, 41 Phil. 506, 517-
518)
This aggravating circumstance applies to an aggressor, 45 years
old, while the victim was an octogenarian. (People vs. Orbillo, G.R. No.
L-2444, April 29, 1950)
This aggravating circumstance was applied also in the case where
the person killed was eighty years old and very weak. (People vs.
Gummuac, 93 Phil. 657)
The aggravating circumstance of disregard of age attended the
commission of the crime when the deceased was 65 while the offenders
were 32 and 27 years of age, respectively. (People vs. Zapata, G.R. No. L-
11074, Feb. 27, 1960, 107 Phil. 103, 108)
The crime was committed in disregard of the respect due to the
victim on account of age and relationship,
345
of Offended Party
Party
the accused being a grandson of the deceased. (People vs. Curatchia, No. L-
31771, May 16, 1980, 97 SCRA 549,
556)
The circumstance of lack of respect due to age applies in cases where the
victim is of tender age as well as of old age. This circumstance was applied in a
case where one of the victims in a murder case was a 12-year-old boy. Here,
the victim was only 3 years old. (People vs. Lora, No. L49430, March
30,1982,113 SCRA 366,375, citing U.S. vs. Butag, 38 Phil. 746. Also, People vs.
Enot, No. L-17530, Oct. 30, 1962, 6 SCRA 325, 329-330, where one of the
victims was only five years old, another, a minor, and the third, a seven-
month-old baby)
But when the injuries inflicted upon a 9-year-old girl were "without any
thought or intention x x x of heaping contumely or insult upon the child
because of her sex or her tender age," this circumstance was not considered
aggravating. (U.S. vs. Dacquel, 781, 782-783)
Deliberate intent to offend or insult required.

The circumstance of old age cannot be considered aggravating in the
absence of evidence that the accused deliberately intended to offend or insult
the age of the victim. (People vs. Diaz, No. L-24002, Jan. 21, 1974, 55 SCRA
178,187)
Disregard of old age not aggravating in robbery with homicide.

It is not proper to consider disregard of old age in crimes against
property. Robbery with homicide is primarily a crime against property and
not against persons. Homicide is a mere incident of the robbery, the latter
being the main purpose and object of the criminal. (People vs. Nabaluna, No.
L-60087, July 7, 1986, 142 SCRA 446, 458)
This circumstance applies to tender age as well as to old age. This
circumstance was applied in a murder case where one of the victims was a boy
twelve years of age.
(U.S. vs. Butag, 38 Phil. 746)
3. of the sex of the offended party.
This refers to the female sex, not to the male sex.
Examples:
a. When a person compels a woman to go to his house against her
will, the crime of coercion with the aggravating
circumstance of disrespect to sex is committed.
(U.S. vs. Quevengco, 2 Phil. 412, 413)
345
Par. 3 Disregard of Rank, Age, Sex or Dwelling
b. The accused who, upon knowing the death of their relative,
and not being able to take revenge on the killers, because of
their imprisonment, selected and killed a female relative of
the killers in retaliation, committed the act with this
aggravating circumstance. (People vs. Dayug, 49 Phil. 423,
427)
c. Direct assault upon a lady teacher. (Sarcepuedes vs. People,
90 Phil. 230; People vs. Manapat, C.A., 51 O.G. 894)
No disregard of respect due to sex.

A and B (a woman) were sweethearts. B told A that she no longer cared
for him and that she loved another man. A stabbed B to death. Held: It was
not proved or admitted by the accused that when he committed the crime, he
had the intention to offend or disregard the sex of the victim. (People vs.
Mangsant, 65 Phil. 548, 550)
Killing a woman is not attended by this aggravating circumstance if the offender
did not manifest any specific insult or disrespect towards her sex.
Disregard of sex is not aggravating in the absence of evidence that the
accused deliberately intended to offend or insult the sex of the victim or
showed manifest disrespect to her womanhood. (People vs. Puno, No. L-33211,
June 29, 1981, 105 SCRA 151,160, citing People vs. Mangsant, 65 Phil. 548;
People vs. Mori, L-23511-2, January 31,
1974, 55 SCRA 382; People vs. Jaula, 90 Phil. 379; U.S. vs. De Jesus, 14 Phil.
190)
Not applicable in certain cases.

This aggravating circumstance is not to be considered in the following
cases:
346
AGGRAVATING CIRCUMSTANCES
Disregard of Rank, Age, Sex or Dwelling of Offended Party
When the offender acted with passion and obfuscation.
When a man is blinded with passion or obfuscation, this being the
condition of the mind, he could not have been conscious that his act was done
with disrespect to the offended party. (People vs. Ibahez, C.A.-G.R. No. 1137-
R, March 20, 1948)
When there exists a relationship between the offended party and the offender.
Facts: After a decree of divorce, the wife was given the custody of their
baby girl. Thereafter, the accused meeting his former wife, asked her to allow
him to visit their daughter, but she turned down his request. The accused
became infuriated and pointed his gun at her as she boarded a carretela. The
gun went off and she was injured.
Held: Notwithstanding the divorce decree, there still existed some
relationship between the accused and his divorced wife, which had direct
bearing with their only child, for which reason, the accused was asking his
former wife to allow him to visit their daughter entrusted to her by order of
the court. The accused had to deal with no other person but with his former
wife to visit his daughter. (People vs. Valencia, C.A., 43 O.G. 3740)
The record does not show that the commission of the crime in question
was attended by any offense to or disregard of the age of the offended party,
about 75 or 65 years old, taking into account the circumstances under which
the act in question developed and the pre-existing relations between the
accused and the deceased. (People vs. Akanatsu, 51 Phil. 963, 965)
There existed in this case a relation of employer and laborer, because the
deceased was a laborer of the offender.
When the condition of being a woman is indispensable in the commission of the
crime.
Thus, in (a) parricide, (b) rape, (c) abduction, or (d) seduction, sex is not
aggravating.
Rape being a sex crime or one committed against a woman, the trial
court erred in considering sex as an ag-
348
gravating circumstance in imposing the penalty, it being inherent
in the crime of rape. (People vs. Lopez, 107 Phil. 1039,1042)
Disregard of sex absorbed in treachery.

There was disregard of sex because the blouse of the victim was
needlessly removed, but the circumstance is absorbed in treachery which is
attendant. (People vs. Clementer, No. L-33490, Aug. 30,1974, 58 SCRA 742,
749, citing People vs. Mangsant, 65 Phil. 548; People vs. Limaco, 88 Phil. 35)
But see People vs. Lapaz, G.R. No. 68898, March 31, 1989, 171 SCRA
539, at 550, where it was held that the aggravating circumstances of disregard
of sex and age are not absorbed in treachery because treachery refers to the
manner of the commission of the crime, while disregard of sex and age
pertains to the relationship of the victim.
That the crime be committed in the dwelling of the

offended party.
Dwelling must be a building or structure, exclusively used for rest and
comfort. A "combination house and store" (People vs. Magnaye, 89 Phil. 233,
239), or a market stall where the victim slept is not a dwelling.

place of the commission of the offense.
Dwelling is considered an aggravating circumstance primarily because
of the sanctity of privacy the law accords to human abode. According to one
commentator, one's dwelling place is a "sanctuary worthy of respect" and that
one who slanders another in the latter's house is more guilty than he who
offends him elsewhere. (People vs. Balansi, G.R. No. 77284, July 19, 1990, 187
SCRA 566, 575)
What aggravates the commission of the crime in one's

dwelling:
1. The abuse of confidence which the offended party reposed in the
offender by opening the door to him; or
Par. 3 Disregard of Rank, Age, Sex or Dwelling of Offended
Party
2. The violation of the sanctity of the home by trespassing therein
with violence or against the will of the owner. (Dissenting opinion
of Justice Villareal, People vs. Ambis, 68 Phil. 635, 637)
"The home is a sort of sacred place for its owner. He who goes to
another's house to slander him, hurt him or do him wrong, is more guilty than
he who offends him elsewhere." (Viada, 5th edition, Vol.
II, pp. 323-324)
348
Party
The evidence must show clearly that the defendant entered the house of
the deceased to attack him. (People vs. Lumasag, 56 Phil.
19, 22; People vs. Manuel, Nos. L-23786-7, Aug. 29, 1969, 29 SCRA 337, 345)
Offended party must not give provocation.

As may be seen, a condition sine qua non of this circumstance, is that the
offended party "has not given provocation" to the offender. When it is the
offended party who has provoked the incident, he loses his right to the respect
and consideration due him in his own house. (People vs. Ambis, supra)
Meaning of provocation in the aggravating circumstance

of dwelling.
The provocation must be:
(1) Given by the owner of the dwelling,
(2) Sufficient, and
(3) Immediate to the commission of the crime.

If all these conditions are present, the offended party is deemed to have
given provocation, and the fact that the crime is committed in the dwelling of
the offended party is not an aggravating circumstance.
On the other hand, if any of those conditions is not present, the offended
party is deemed not to have given provocation, and the fact that the crime is
committed in the dwelling of the offended party is an aggravating
circumstance.
There must be close relation between provocation and

commission of crime in the dwelling.
Although the Code provides that the aggravating circumstance of
dwelling cannot be properly taken into account if the provocation was given
by the offended party, this is true only when there exists a close relation
between the provocation and the commission of the crime in the dwelling of
the person from whom the provocation came. (People vs. Dequiiia, 60 Phil.
279, 288)
Because the provocation is not immediate, dwelling is

aggravating.
The defendant learned that the deceased and the former's wife were
maintaining illicit relations. One night, he went to the house of the deceased
349
and killed him then and there. During the trial of the case, the defense
contended that the deceased provoked the crime by his illicit relations with the
defendant's wife. Held: That the provocation (the illicit relations) was not
given immediately prior to the commission of the crime. Dwelling is still
aggravating. (People vs. Dequina, 60 Phil. 279, 288-289)
Even if the defendant came to know of the illicit relations immediately
before he went to the house of the deceased, the aggravating circumstance of
dwelling may still be considered against the defendant because the provocation
(the illicit relations) did not take place in that house.
If the defendant surprised the deceased and the wife of the defendant in
the act of adultery in the house of the deceased, the aggravating circumstance
of dwelling would not exist. (People vs. Dequina, supra)
Owner of dwelling gave immediate provocation — dwelling

is not aggravating.
Dwelling is not aggravating, although the incident happened in the
house of the victim, where the stabbing was triggered off by his provocative
and insulting acts, for having given sufficient provocation before the
commission of the crime, he has lost his right to the respect
and consideration due him in his own house. (People vs. Atienza, No.
L-39777, Aug. 31, 1982, 116 SCRA 379, 385)
Par. 3 Disregard of Rank, Age, Sex or Dwelling of Offended Party
While in her house, the offended party began to abuse the daughter of
the accused and to call her vile names. The accused heard the insulting words
and appeared in front of the offended party's house and demanded an
explanation. A quarrel ensued, and the accused, becoming very angry and
excited, entered the house of the offended party and struck her with a bolo. In
that case, the invasion of the privacy of the offended party's home was the
direct and immediate consequence of the provocation given by her. No
aggravating circumstance of dwelling. (U.S. vs. Licarte, 23 Phil. 10, 12)
Prosecution must prove that no provocation was given by

the offended party.
That the offended party has not given provocation in his house is a fact
that must be shown by the evidence of the prosecution, as it cannot be
assumed. It is an essential element of the aggravating circumstance of
dwelling. (People vs. Pakah, 81 Phil. 426, 429)
350
Party
Even if the offender did not enter the dwelling, this
circumstance applies.
The aggravating circumstance of dwelling should be taken into account.
Although the triggerman fired the shot from outside the house, his victim was
inside. For this circumstance to be considered, it is not necessary that the
accused should have actually entered the dwelling of the victim to commit the
offense; it is enough that the victim was attacked inside his own house,
although the assailant may have devised means to perpetrate the assault from
without.
(People vs. Ompaid, No. L-23513, Jan. 31, 1969, 26 SCRA 750, 760, citing
People vs. Albar, 86 Phil. 36) Thus, dwelling was held aggravating where the
victim who was asleep in his house was shot as he opened the door of his house
upon being called and awakened by the accused. (People vs. Talay, No. L-
24852, Nov. 28, 1980, 101 SCRA 332, 346)
Dwelling is aggravating, even if the offender did not enter the upper
part of the house where the victim was, but shot from under the house. (People
vs. Bautista, 79 Phil. 652, 653, 657)
Even if the killing took place outside the dwelling, it is

aggravating provided that the commission of the crime
was begun in the dwelling.
Thus, where the accused began the aggression upon the person of the
deceased in the latter's dwelling by binding his hands or by dragging him from
his house and after taking him to a place near the house he killed him,
dwelling is aggravating, since the act performed cannot be divided or the unity
resulting from its details be broken up. (U.S. vs. Lastimosa, 27 Phil. 432, 438;
People vs. Mendova, 100 Phil. 811, 818)
Dwelling is aggravating in abduction or illegal detention.

In abduction or illegal detention where the victim was taken from her or
his house and carried away to another place, dwelling is aggravating. (U.S. vs.
Banila, 19 Phil. 130,133; U.S. vs. Velasquez, 8 Phil. 321, 324; People vs.
Masilungan, 104 Phil. 621, 635)
But dwelling was not aggravating in a case where the deceased was
called down from his house and he was murdered in the vicinity of the house.
(U.S. vs. Ramos, 1 Phil. 192, 193; People vs. Lumasag, 56 Phil. 19, 22-23)
What dwelling includes.
351
Dwelling includes dependencies, the foot of the staircase and enclosure
under the house. (U.S. vs. Tapan, 20 Phil. 211, 213; People vs. Alcala, 46 Phil.
739, 744)
But, in People vs. Diamonon, L-38094, Nov. 7, 1979, 94 SCRA
227,239,240, where the victim was stabbed at the foot of their stairs, dwelling
was not aggravating. Aquino, J., concurring and dissenting, said that dwelling
is aggravating because the killing took place at the foot of the stairs of the
victim's house, (p. 241)
If the deceased was only about to step on the first rung of the ladder when
he was assaulted, the aggravating circumstance of dwelling will not be
applicable. (People vs. Sespene, 102 Phil. 199, 210)
When the deceased had two houses where he used to

live, the commission of the crime in any of them is
attended by the aggravating circumstance of dwelling.
In a case, it was held that the aggravating circumstance of
Par. 3 Disregard of Rank, Age, Sex or Dwelling of Offended
Party
dwelling was present, because the deceased was murdered in the house at
Franco Street in Tondo, which was one of the two houses (the other being at
Constancia, Sampaloc) where the deceased used to live and have his place of
abode during his stay in Manila. (People vs. Rodriguez, 103 Phil. 1015)
Dwelling is not aggravating in the following cases:

1. When both offender and offended party are occupants of the same
house (U.S. vs. Rodriguez, 9 Phil. 136,139-140), and this is true
even if offender is a servant in the house. (People vs. Caliso, 58 Phil.
283, 294-295)
Thus, dwelling is not aggravating in rape where the accused
and the offended party are domiciled in the same house. (People vs.
Morales, No. L-35413, Nov. 7,1979, 94 SCRA 191, 201)
2. When the robbery is committed by the use of force upon things,
dwelling is not aggravating because it is inherent. To commit
robbery by the use of force upon things, the offender must enter
the dwelling house, or other building, of the offended party. (U.S.
vs. Cas, 14 Phil. 21, 22)
But dwelling is aggravating in robbery with violence against
or intimidation of persons because this class of robbery can be
committed without the necessity of trespassing the sanctity of the
352
Party
offended party's house. Entrance into the dwelling house of the
offended party is not an element of the offense. (People vs. Cabato,
No. L-37400, April 15, 1988, 160 SCRA 98, 110; People vs.
Apduhan, Jr., No. L-19491, Aug. 30, 1968, 24 SCRA 798, 815;
People vs. Valdez, 64 Phil. 860, 867)
Dwelling is not inherent, hence, aggravating, in robbery with
homicide since the author thereof could have accomplished the
heinous deed without having to violate the domicile of the victim.
(People vs. Mesias, G.R. No. 67823, July 9, 1991, 199 SCRA 20, 27,
citing earlier cases)
Note: There are two kinds of robbery: (1) robbery with violence
against or intimidation of persons; and (2)
robbery with force upon things in inhabited house.
(Arts. 294 and 299)
3. In the crime of trespass to dwelling, it is inherent or included by

law in defining the crime. This crime can be committed only in the
dwelling of another.
4. When the owner of the dwelling gave sufficient and immediate
provocation.
5. When the dwelling where the crime was committed did not belong
to the offended party. Thus, when the accused, upon hearing that
their sister was dead, went to her house, and then and there, upon
seeing their sister lying on the floor with her head resting on the
lap of her paramour, and thinking that the latter had killed her,
attacked and killed him, the aggravating circumstance of dwelling
cannot be considered against the accused. The dwelling did not
belong to the paramour, the person whom they killed. (People vs.
Guhiting, 88 Phil. 672, 675)
6. When the rape was committed in the ground floor of a two-story
structure, the lower floor being used as a video rental store and
not as a private place of abode or residence.
(People vs. Tano, G.R. No. 133872, May 5, 2000)
Dwelling was found aggravating in the following cases

although the crimes were committed not in the dwelling of
the victims.
353
1. The victim was raped in the boarding house where she was a
bedspacer. Her room constituted a "dwelling" as the term is used
in Article 14(3) of the Revised Penal Code.
(People vs. Daniel, No. L-40330, Nov. 20, 1978, 86 SCRA 511, 531)
2. The victims were raped in their paternal home where they were
guests at the time and did not reside there. (2 CAR
[2s] 675)
But in People vs. Ramolete, No. L-28108, March 27, 1974, 56
SCRA 66, 81, dwelling was not considered aggravating because
the victim was a mere visitor in the house where he was killed.
354
Par. 3 Disregard of Rank, Age, Sex or Dwelling of Offended Party
3. The victim was killed in the house of her aunt where she was
living with her niece. Dwelling was considered aggravating
because dwelling may mean temporary dwelling. (People vs.
Badilla, G.R. No. 69317, May 21, 1990, 185 SCRA 554, 570)
4. The victims, while sleeping as guests in the house of another
person, were shot to death in that house. Dwelling was held
aggravating. The Code speaks of "dwelling," not domicile. (People
vs. Basa, 83 Phil. 622, 624)
Dwelling is aggravating when the husband killed his

estranged wife in the house solely occupied by her.
The aggravating circumstance of dwelling is present when the husband
killed his estranged wife in the house occupied by her, other than the conjugal
home. (People vs. Galapia, Nos. L-39303-05, Aug. 1, 1978, 84 SCRA 526, 532)
In case of adultery.
When adultery is committed in the dwelling of the husband, even if it is
also the dwelling of the unfaithful wife, it is aggravating because besides the
latter's breach of the fidelity she owes her husband, she and her paramour
violated the respect due to the conjugal home and they both thereby injured
and commited a very grave offense against the head of the house. (U.S. vs.
Ibanez, 33 Phil. 611, 613)
Note: Adultery is committed by a married woman who shall have sexual

intercourse with a man not her husband and by the man who
has carnal knowledge of her, knowing her to be married. (Art.
333, Revised Penal Code)
Dwelling not aggravating in adultery when paramour also lives there.

But the rule is different if both the defendants (the wife and her
paramour) and the offended party were living in the same house because the
defendants had a right to be in the house.
The aggravating circumstance of abuse of confidence was properly
applied, when the offended husband took the paramour into his home,
furnished him with food and lodging without charge, and treated him like a
son. (U.S. vs. Destrito, 23 Phil. 28, 33)
Abuse of Confidence and Obvious Par. 4
Ungratefulness
355
The aggravating circumstance present in such case is abuse of
confidence, if the offender availed himself of the favorable position in which he
was placed by the very act of the injured party, thus grossly abusing the
confidence of the latter in admitting him into his dwelling. (U.S. vs. Barbicho,
13 Phil. 616, 620-621)
Dwelling is not included in treachery.

Although nocturnity and abuse of superior strength are always included
in the qualifying circumstance of treachery, dwelling cannot be included
therein. (People vs. Ruzol, 100 Phil. 537, 544)
Par. 4. — That the act be committed with (1) abuse of confidence, or (2)
obvious ungratefulness.
There are two aggravating circumstances in this paragraph.
Basis of these aggravating circumstances.

They are based on the greater perversity of the offender, as shown by
the means and ways employed.
Abuse of confidence.
This circumstance exists only when the offended party has trusted the
offender who later abuses such trust by committing the crime. The abuse of
confidence must be a means of facilitating the commission of the crime, the
culprit taking advantage of the offended party's belief that the former would
not abuse said confidence.
Requisites:
1. That the offended party had trusted the offender.
2. That the offender abused such trust by committing a crime
against the offended party.
3. That the abuse of confidence facilitated the commission of the
crime. (People vs. Luchico, 49 Phil. 689, 697; People vs. Zea, No.
L-23109, June 29, 1984, 130 SCRA 77, 90)
Par. 4 Abuse of Confidence and Obvious
Ungratefulness Example:
356
A jealous lover, who had already determined to kill his sweetheart,
invited her to a ride in the country. The girl, unsuspecting of his plans, went
with him. While they were in the car, the jealous lover stabbed her. It was held
that this aggravating circumstance was present. (People vs. Marasigan, 70
Phil. 583, 594)
Confidence does not exist.

Facts: After preliminary advances of the master, the female servant
refused and fled. The master followed and after catching up with her, threw
her on the ground and committed the crime of rape. When the master raped
the offended party, she had already lost her confidence in him from the
moment he made an indecent proposal and offended her with a kiss.
Held: The confidence must facilitate the commission of the crime, the
culprit taking advantage of offended party's belief that the former would not
abuse said confidence. No aggravating circumstance in this case. (People vs.
Luchico, 49 Phil. 689, 697)
There is no abuse of confidence in attempted rape where on the day of
the crime, the accused was in the company of the offended girl, not because of
her confidence in him, but because they were partners in a certain business.
(People vs. Brocal, C.A., 46 O.G. 6163)
Special relation of confidence between accused and

victim.
There is no abuse of confidence where the deceased and the accused
happened to be together because the former invited the latter nightclubbing
and to bring with him the money the latter owed the former. (People vs. Ong,
No. L-34497, Jan. 30, 1975, 62 SCRA 174, 213-214)
Betrayal of confidence is not aggravating.

Facts: The offended party was living in the house of the accused, her
parents having entrusted her to the care of said accused. One day, at about
6:30 in the evening, while the offended party was standing in front of a store
watching some children who were playing, the accused approached her, took
her by the arm and forcibly led her to an isolated toilet, hidden from public
view by some tall Abuse of Confidence and Obvious Par. 4
Ungratefulness
grasses, and once in the spot, he intimidated her with a knife and through the
use of force and violence succeeded in having sexual intercourse with her.
357
Held: There is no showing that the accused was able to commit the crime
by abusing the confidence reposed in him by the offended party. The accused
betrayed the confidence reposed in him by the parents of the girl. But this is
not an aggravating circumstance. It must be an abuse of confidence that
facilitated the commission of the crime which is aggravating. (People vs.
Arthur Crumb, C.A., 46 O.G. 6163)
Killing of child by an amah is aggravated by abuse of confidence.

When the killer of the child is the domestic servant of the family and is
sometimes the deceased child's amah, the aggravating circumstance of grave
abuse of confidence is present. (People vs. Caliso, 58 Phil. 283, 294)
Compare this case with the Crumb case. In the Crumb case, the
confidence reposed by the parents of the girl in the offender could not have
facilitated the commission of the crime, because the offended girl could resist,
although unsuccessfully, the commission of the crime.
In the Caliso case, the victim, being a nine-month-old child, could not
resist the commission of the crime. The confidence reposed by the parents of
the child in the offender facilitated the commission of the crime.
The confidence between the offender and the offended

party must be immediate and personal.
In the case of U.S. vs. Torrida, 23 Phil. 189,192, it was held that the mere
fact that the voters had reposed confidence in the defendant by electing him to
a public office does not mean that he abused their confidence when he
committed estafa against them.
Abuse of confidence inherent in some felonies.

It is inherent in malversation (Art. 217), qualified theft (Art.
310), estafa by conversion or misappropriation (Art. 315), and qualified
seduction. (Art. 337)
Par. 4 Abuse of Confidence and Obvious
Ungratefulness
Ungratefulness must be obvious, i.e., manifest and clear.

The other aggravating circumstance in paragraph 4 of Art. 14 is that the
act be committed with obvious ungratefulness.
This aggravating circumstance was present in the case of the accused
who killed his father-in-law in whose house he lived and who partially
supported him. (People vs. Floresca, G.R. Nos. L-8614-15,
358
May 31, 1956, 99 Phil. 1044)
The circumstance was present where the accused was living in the house
of the victim who employed him as an overseer and in charge of carpentry
work, and had free access to the house of the victim who was very kind to him,
his family, and who helped him solve his problems. (People vs. Lupango, No.
L-32633, Nov. 12,1981, 109 SCRA 109, 126)
The circumstance was present where a security guard killed a bank
officer and robbed the bank. (People vs. Nismal, No. L-51257,
June 25, 1982, 114 SCRA 487, 494-495)
The circumstance was present where the victim was suddenly attacked
while in the act of giving the assailants their bread and coffee for breakfast.
Instead of being grateful to the victim, at least by doing him no harm, they
took advantage of his helplessness when his two arms were used for carrying
their food, thus preventing him from defending himself from the sudden
attack. (People vs. Bautista, No. L-38624, July 25, 1975, 65 SCRA 460, 470)
The circumstance exists when a visitor commits robbery or theft in the

house of his host.
But in the case of Mariano vs. People, 68 Phil. 724, 726, the act of stealing
the property of the host is considered as committed with abuse of confidence.
The mere fact, however, that the accused and the offended party live in
the same house is not in itself enough to hold that there was present abuse of
confidence where the house was not the property of the offended party.
(People vs. Alqueza, 51 Phil.
817, 819-820)
Palace and Places of Commission of Offense Par. 5
Par. 5. — That the crime be committed in the palace of the

Chief Executive, or in his presence, or where public
authorities are engaged in the discharge of their duties, or in
a place dedicated to religious worship.
Basis of the aggravating circumstances.

They are based on the greater perversity of the offender, as shown by
the place of the commission of the crime, which must be respected.
Place where public authorities are engaged in the

discharge of their duties (par. 5), distinguished from
contempt or insult
359
to public authorities, (par. 2)
1. In both, the public authorities are in the performance of their
duties.
2. Under par. 5, the public authorities who are in the performance of
their duties must be in their office; while in par. 2, the public
authorities are performing their duties outside of their office.
3. Under par. 2, the public authority should not be the offended
party; while under par. 5, he may be the offended party. (U.S. vs.
Baluyot, 40 Phil. 385, 395) Official or religious functions,
not necessary.
The place of the commission of the felony (par. 5), if it is
Malacahang palace or a church, is aggravating, regardless of whether State or
official or religious functions are being held.
The Chief Executive need not be in Malacanang palace. His presence
alone in any place where the crime is committed is enough to constitute the
aggravating circumstance. This aggravating circumstance is present even if he
is not engaged in the discharge of his duties in the place where the crime is
committed.
Other public authorities must be actually engaged in the

performance of duty.
But as regards the place where the public authorities are engaged in
the discharge of their duties, there must be some performance of public
functions.
Par. 5 Palace and Places of Commission of Offense
Thus, where the accused and the deceased who were respectively
plaintiff and defendant in a civil case in the court of a justice of the peace,
having gotten into some trouble, left the courtroom and went into an
adjoining room, where the accused, without any warning, attacked the
deceased with a knife and killed him on the spot, it has
been held that it was error to consider the aggravating circumstance of having
committed the offense in the place where the public authority
was exercising his functions. (U.S. vs. Punsalan, 3 Phil. 260, 261)
Undoubtedly, the reason for not applying the circumstance was that the
court had already adjourned when the crime was committed, and the attack
was made in the adjoining room, not in the very place where the justice of the
peace was engaged in the discharge of his duties.
360
An electoral precinct during election day is a place "where public authorities are
engaged in the discharge of their duties."
Thus, the aggravating circumstance "that the crime be committed x x x
where public authorities are engaged in the discharge of their duties" was
appreciated in the murder of a person in an electoral precinct or polling place
during election day. (People vs. Canoy, G.R. No. L-6037, Sept. 30,1954
[unreported])
Place dedicated to religious worship.

Cemeteries are not such a place, however respectable they may be, as
they are not dedicated to the worship of God. The church is a place dedicated
to religious worship.
The aggravating circumstance "that the crime be committed x x x in a
place dedicated to religious worship" was appreciated in a case where the
accused shot the victims inside the church or in a case of unjust vexation
where the accused kissed a girl inside a church when a religious service was
being solemnized. (People vs. Anonuevo, C.A., 36 O.G. 2018; People vs.
Dumol, CA-G.R. No. 5164-R, April 4, 1951)
Offender must have intention to commit a crime when he

entered the place.
Facts: At the time of the commission of the crime, both the deceased and
defendant were inside a chapel. The deceased placed
361
Par. 6 Nighttime, Uninhabited Place or Band
Par. 6
his hand on the right thigh of defendant girl, who pulled out with her right
hand a fan knife and stabbed him.
Held: The aggravating circumstance that the killing was done in a place
dedicated to religious worship cannot be legally considered, where there is no
evidence to show that the defendant had murder in her heart when she entered
the chapel on the fatal night. (People vs. Jaurigue, 76 Phil. 174, 182)
This ruling seems to be applicable also in case a crime is committed in
Malacanang palace or where public authorities are engaged in the discharge
of their duties.
Par. 6. — That the crime be committed (1) in the nighttime, or

(2) in an uninhabited place, or (3) by a band, whenever such
circumstance may facilitate the commission of the offense.

They are based on the time and place of the commission of the crime
and means and ways employed.
Should these circumstances be considered as one only or

three separately?
In its decision of April 5, 1884, the Supreme Court of Spain held that
they constitute only one aggravating circumstance if they concur in the
commission of felony. But in its decision of April 27, 1897, the same court held
that its former decision did not declare an absolute and general rule which
would exclude the possibility of their being considered separately when their
elements are distinctly perceived and can subsist independently, revealing a
greater degree of perversity. (People vs. Santos, 91 Phil. 320, 327-328)
Thus, inPeople vs. Cunanan, 110 Phil. 313, 318, nighttime and band were
considered separately.
When aggravating.
Nighttime, uninhabited place or band is aggravating —
(1) When it facilitated the commission of the crime; or
362
Nighttime, Uninhabited Place or Band
(2) When especially sought for by the offender to insure the
commission of the crime or for the purpose of impunity
(People vs. Pardo, 79 Phil. 568, 578); or
(3) When the offender took advantage thereof for the purpose of
impunity. (U.S. vs. Billedo, 32 Phil. 574, 579; People vs.
Matbagon, 60 Phil. 887, 893)
Although nocturnity should not be estimated as an aggravating
circumstance, since the time for the commission of the crime was not
deliberately chosen by the accused; yet, if it appears that the accused took
advantage of the darkness for the more successful consummation of his plans,
to prevent his being recognized, and that the crime might be perpetrated
unmolested, the aggravating circumstance of nocturnity should be applied.
To take advantage of a fact or circumstance in committing a crime
clearly implies an intention to do so, and one does not avail oneself of the
darkness unless one intended to do so. (People vs.
Matbagon, 60 Phil. 887, 893; People vs. Apduhan, Jr., No. L-19491, Aug. 30,
1968, 24 SCRA 798, 816)
Illustration of taking advantage of nighttime.

A, with intent to kill B, had hidden behind a tree and availed himself of
the darkness to prevent his being recognized or to escape more readily. As
soon as B came, A stabbed him to death.
"Whenever such circumstances may facilitate the

commission of the offense."
Paragraph 6 of Article 14 requires only that nighttime, uninhabited
place, or band "may facilitate the commission of the offense." The test fixed
by the statute is an objective one. (Dissenting opinion in People vs. Matbagon,
60 Phil. 887, 894)
Nighttime may facilitate the commission of the crime, when because of the
darkness of the night the crime can be perpetrated unmolested, or interference
can be avoided, or there would be greater
certainty in attaining the ends of the offender. (People vs. Matbagon, supra)
Par. 6
Nighttime facilitated the commission of the crime to such an extent that

the defendant was able to consummate it with all its dastardly details without
363
anyone of the persons living in the same premises becoming aware of what was
going on. (People vs. Villas, No. L-20953, April 21, 1969, 27 SCRA 947, 952-
953)
Meaning of "especially sought for," "for the purpose of

impunity," and "took advantage thereof."
The Supreme Court considered other tests for the application of the
aggravating circumstances under this paragraph. They are aggravating when
they are "especially sought for" or when the offender "took advantage
thereof."
The offender especially sought for nighttime, when he sought for it in
order to realize the crime with more ease. (People vs. Aquino,
68 Phil. 615, 618)
Nighttime is not especially sought for, when the notion to commit the
crime was conceived only shortly before its commission (People vs. Pardo, 79
Phil. 568, 578-579), or when the crime was committed at night upon a mere
casual encounter. (People vs. Cayabyab, 274 SCRA 387)
But where the accused waited for the night before committing robbery
with homicide, nighttime is especially sought for. (People vs. Barredo, 87 Phil.
800)
Nighttime was appreciated against the accused who was living only 150
meters away from the victim's house and evidently waited for nightfall to hide
his identity and facilitate his escape, knowing that most barrio folks are
already asleep, or getting ready to sleep, at 9:00 p.m. (People vs. Baring, G.R.
No. 87017, July 20, 1990, 187
SCRA 629, 636)
Nighttime was sought for where the accused lingered for almost three
hours in the evening at the restaurant before carrying out their plan to rob it.
(People vs. Lungbos, No. L-57293, June 21, 1988, 162
SCRA 383, 388)
There is sufficient proof that the offenders purposely sought nighttime
to commit the crime. Consider the facts that the accused tried to ascertain
whether the occupants of the house were asleep, thereby indicating the desire
to carry out the plot with the least detection or to insure its consummation
with a minimum of resistance from the inmates of the house. (People vs.
Atencio, No. L-22518,
January 17, 1968, 22 SCRA 88, 102-103)
364
The circumstance of nighttime was aggravating where it is self-evident
that it was sought to facilitate the commission of the offense, when all the
members of the household were asleep.
(People vs. Berbal, G.R. No. 71527, Aug. 10, 1989, 176 SCRA 202, 216)
Nighttime need not be specifically sought for when (1) it

facilitated the commission of the offense, or (2) the
offender took advantage of the same to commit the crime.
It is the constant jurisprudence in this jurisdiction that the circumstance
of nocturnity, although not specifically sought for by the culprit, shall
aggravate his criminal liability if it facilitated the commission of the offense or
the offender took advantage of the same to commit the crime. (People vs.
Corpus, C.A., 43 O.G. 2249, citing U.S. vs. Perez, 32 Phil. 163; People vs.
Pineda, 56 Phil. 688) .
Nocturnity, even though not specially sought, if it facilitated the
commission of the crime and the accused took advantage thereof to commit it,
may be considered as an aggravating circumstance.
(People vs. Lungbos, supra, citing People vs. Galapia, 84 SCRA 530)
"For the purpose of impunity" means to prevent his (accused's) being
recognized, or to secure himself against detection and punishment. (People vs.
Matbagon, 60 Phil. 887, 891-892, 893)
Thus, it was held that the commission of the crime was attended by the
aggravating circumstance of nighttime, because of the silence and darkness of
the night which enabled the offender to take away the girl with impunity—a
thing which undoubtedly the offender could not have done in the daytime and
in sight of people. (U.S. vs. Yumul,
34 Phil. 169, 175)
The offender took advantage of any of the circumstances of nighttime,
uninhabited place, or by a band when he availed himself thereof at the time of
the commission of the crime for the purpose of impunity or for the more
successful consummation of his plans.
365
Art. 14
Par. 6
(a) Nighttime.
By the word "nighttime" should be understood, according to
Viada, that period of darkness beginning at end of dusk and ending at dawn.
Nights are from sunset to sunrise. (Art. 13, Civil Code)
Nighttime by and of itself is not an aggravating circumstance.

The lower court appreciated nocturnity against appellants solely on the
basis of the fact on record that the crime was committed at about 5 o'clock in
the morning. This particular finding stands correction. By and of itself,
nighttime is not an aggravating circumstance. It becomes so only when it is
especially sought by the offender, or taken advantage of by him to facilitate
the commission of the crime or to insure his immunity from capture. In the
instant case, other than the time of the crime, nothing else whatsoever suggests
that the aggravating circumstance of nighttime was deliberately availed of by
appellants. In view of this deficiency, said circumstance should be disallowed
even as, technically, it may have been accepted by them when they pleaded
guilty on arraignment. (People vs. Boyles, No. L-15308, May 29, 1964, 11
SCRA 88, 94)
Where the darkness of the night was merely incidental to the collision
between two vehicles which caused the heated argument and the eventual
stabbing of the victim, nighttime is not aggravating. To be aggravating, the
prosecution must show that the accused purposely sought to commit the crime
at nighttime in order to facilitate the achievement of his objectives, prevent
discovery or evade capture. (People vs. Velaga, Jr., G.R. No. 87202, July
23,1991,199 SCRA 518, 523-524)
The information must allege that nighttime was sought for

or taken advantage of by the accused or that it facilitated
The jurisprudence on this subject is to the effect that nocturnity must
have been sought or taken advantage of to improve the chances of success in
the commission of the crime or to provide impunity for the offenders. The
bare statement in the information that the crime was committed in the
darkness of the night fails to satisfy the crite-
rion. (People vs. Fernandez, No. L-32623, June 29, 1972, 45 SCRA
535, 537)
366
Not aggravating when crime began at daytime.
When the crime was the result of a succession of acts which took place
within the period of two hours, commencing at 5:00 p.m. and ending at 7:00
p.m., without a moment's interruption in which it can be said that the thought
of nighttime, being the most favorable occasion for committing the crime,
occurred to the accused, there is no aggravating circumstance of nighttime.
(People vs. Luchico, 49 Phil. 689, 697)
The commission of the crime must begin and be accomplished in the nighttime.
Thus, although the safe was thrown into the bay at night, but the money,
the taking of which constituted the offense, was withdrawn from the treasury
during the daytime, the crime of malversation was not attended by the
aggravating circumstance of nighttime. (U.S. vs. Dowdell, 11 Phil. 4, 7)
The offense must be actually committed in the darkness of the night.

Thus, when the defendants did not intentionally seek the cover of
darkness for the purpose of committing murder and they were carrying a light
of sufficient brilliance which made it easy for the people nearby to recognize
them (U.S. vs. Paraiso, 17 Phil. 142,146-147), or when the crime of robbery
with homicide was committed at daybreak when the defendants could be
recognized (U.S. vs. Tampacan, 19 Phil. 185, 188), nighttime is not
aggravating.
When the place of the crime is illuminated by light, nighttime is not aggravating.
The fact that the scene of the incident was illuminated by the light on the
street as well as that inside the vehicle of which the victim was a passenger,
negates the notion that accused had especially sought or had taken advantage
of nighttime in order to facilitate the commission of the crime of theft or for
purposes of impunity. (People vs. Joson, C.A., 62 O.G. 4604)
Although the offense was committed at nighttime, the record does not
show that appellant had sought it purposely or taken advantage thereof to
facilitate the perpetration of the offense. In fact, the place from which he fired
at Laguna seemed to be sufficiently lighted Art. 14
Par. 6
for him to be clearly visible to, as well as recognized by, all of those who
happened to be nearby. (People vs. Bato, G.R. No. L-23405, Dec. 29, 1967, 21
SCRA 1445, 1448)
367
Nocturnity is not aggravating where there is no evidence that the
accused had purposely sought the cover of the darkness of the night to commit
the crime; nor is there evidence that nighttime facilitated the commission of
the crime, aside from the fact that the scene of the crime was illuminated.
(People vs. Moral, No. L-31139, Oct. 12,1984, 132 SCRA 474, 487. Also, People
vs. Turing, G.R. No. 56358, Oct. 26, 1990, 191 SCRA 38, 47; People vs. Aspili,
G.R. Nos. 89418-19, Nov. 21, 1990, 191 SCRA 530, 543)
The lighting of a matchstick or use of flashlights does not

negate the aggravating circumstance of nighttime.
It is self-evident that nighttime was sought by appellant to facilitate the
commission of the offense, when all the members of the household were asleep.
The fact that Restituto Juanita hit a matchstick does not negate the presence
of said aggravating circumstance. Thus, in People vs. Rogelio Soriano, etal.,
G.R. No. L-32244, June 24,1983, 122 SCRA 740, this Court rejected the
contention that nocturnity could not be appreciated because flashlights were
used. (People vs. Berbal, et.al, G.R. No. 71527, Aug. 10, 1989)
(b) Uninhabited place.
What is uninhabited place?

An uninhabited place is one where there are no houses at all, a place at a
considerable distance from town, or where the houses are scattered at a great
distance from each other.
This aggravating circumstance should not be considered when the place
where the crime was committed could be seen and the voice of the deceased
could be heard from a nearby house. (People vs. Laoto,
52 Phil. 401, 408)
Whether or not the crime committed is attended by this aggravating
circumstance should be determined not by the distance of the nearest house
from the scene of the crime, but whether or not in the place of the commission
of the offense there was a reasonable possibility of the victim receiving some
help.
That the place is uninhabited is determined, not by the distance of the
nearest house to the scene of the crime, but whether or not in the place of its
commission, there was reasonable possibility of the victim receiving some help.
Thus, the crime is committed in an uninhabited place where the killing was
done during nighttime, in a sugarcane plantation about a hundred meters from
the nearest house, and the sugarcane in the field was tall enough to obstruct
368
the view of neighbors and passersby. (People vs. Fausto Damaso, 75 O.G.
4979,
No. 25, June 18, 1979)
The purely accidental circumstance that on the day in question another
banca, namely, that of the witnesses for the prosecution, was also at sea, is not
an argument against the consideration of such aggravating circumstance. It
was difficult for the victim to receive any help and it was easy for the
assailants to escape punishment. (People vs. Rubia, 52 Phil. 172, 175-176;
People vs. Arpa, No. L-26789, April 25,1969, 27 SCRA 1037, 1044)
Uninhabited place is aggravating where the felony was perpetrated in
the open sea, where no help could be expected by the victim from other
persons and the offenders could easily escape punishment. (People vs. Nulla,
No. L-69346, Aug. 31,1987,153 SCRA 471, 483)
The fact that persons occasionally passed in the uninhabited place and
that on the night of the murder another hunting party was not a great distance
away, does not matter. It is the nature of the place which is decisive. (People
vs. Bangug, 52 Phil. 87, 92)
A place about a kilometer from the nearest house or other inhabited
place is considered an uninhabited place. (People vs. Aguinaldo, 55 Phil. 610,
616; People vs. Mendova, 100 Phil. 811,
818)
With the finding of the body of the victim in a solitary place off the road
and hidden among the trees and tall grasses on a hill, some 500 meters away
from the toll gate where help to the victim was difficult and the escape of the
accused seemed easy, it is correct to appreciate the aggravating circumstance
of uninhabited place. (People vs. Atitiw, C.A., 66 O.G. 4040)
The killing was done in Barrio Makatipo, Novaliches, Caloocan
City, an isolated place that resembled that of an abandoned Art. 14
Par. 6
subdivision. The place was ideal not merely for burying the victim but also for
killing him for it was a place where the possibility of the victim receiving some
help from third persons was completely absent. The accused sought the
solitude of the place in order to better attain their purpose without
interference, and to secure themselves against detection and punishment.
(People vs. Ong, No. L-34497, Jan. 30, 1975, 62 SCRA 174, 212-213)
369
When the victims are the occupants of the only house in
the place, the crime is committed in an uninhabited place.
In the case of People vs. Piring, 63 Phil. 546, where the accused attacked
and killed a couple in their house, the circumstance of uninhabited place was
not taken into consideration as aggravating circumstance, because it was not
proven that there were no houses near the house of the deceased. The
implication is that, if it was shown that there were no houses there, it would be
considered an uninhabited place, even if there was a house there and the
victims were living in that house.
Solitude must be sought to better attain the criminal

purpose.
It must appear that the accused sought the solitude of the place where
the crime was committed, in order to better attain his purpose. (People vs.
Aguinaldo, 55 Phil. 610, 616) The offenders must choose the place as an aid
either (1) to an easy and uninterrupted accom-
plishment of their criminal designs, or (2) to insure concealment of the offense,
that he might thereby be better secured against detection
and punishment. (U.S. vs. Vitug, 17 Phil. 1, 20; People vs. Andaya, No. L-
63862, July 31, 1987, 152 SCRA 570, 578)
Hence, this aggravating circumstance is not present even if the crime
was committed in an uninhabited place, if the offended party was casually
encountered by the accused and the latter did not take advantage of the place
or there is no showing that it facilitated the commission of the crime. (People
vs. Luneta, 79 Phil. 815, 818)
The aggravating circumstance of uninhabited place cannot be
considered against the defendants, although the house nearest to the dwelling
of the victim was about a kilometer away, if the defendants did not select the
place either to better attain their object without interference or to secure
themselves against detection and punishment. (People vs. Deguia, 88 Phil.
520, 526)
(c) By a band.
What is a band?
Whenever more than three armed malefactors shall have acted together
in the commission of an offense, it shall be deemed to have been committed by
a band.
The armed men must act together in the commission of the crime.
370
The mere fact that there are more than three armed men at the scene of
the crime does not prove the existence of a band, if only one of
them committed the crime while the others were not aware of the commission
of the crime. The definition of "by a band" says that the armed men "shall
have acted together in the commission of the offense."
The band must be composed of more than three armed persons. Hence,
even if there are 20 persons, but only 3 are armed, this aggravating
circumstance by a band cannot be considered. (U.S. vs. Mendigoren, 1 Phil.
658, 659; See also U.S. vs. Melegrito, 11 Phil. 229, 231; People vs. Pakah, 81
Phil. 426, 429; People vs. Ga, G.R. No. 49831, June 27, 1990, 186 SCRA 790,
797; People vs. Lungbos, No.
L-57293, June 21, 1988,162 SCRA 383, 388)
"Stone" is included in the term "arms."

We held in the case of People vs. Bautista (28 SCRA 184) that there is an
intention to cause death if the accused throws a stone at the victims, thus
including stone under the term arms in the phrase "more than 3 armed
malefactors acted together." (People vs. Manlolo,
G.R. No. 40778, Jan. 26, 1989)
If one of the four armed persons is a principal by

inducement, they do not form a band.
What is more, the supposed participation of the petitioner herein,
Modesto Gamara, as denned in the same information, was that of principal by
inducement, which undoubtedly connotes that he has no direct participation in
the perpetration thereof. (Gamara vs. Valero, No. L-36210, June 25, 1973, 51
SCRA 322, 326)
Note: All the armed men, at least four in number, must take direct part
in the execution of the act constituting the crime. (Art. 17,
paragraph 1, Revised Penal Code)
371
Nighttime, Uninhabited Place or Band Par. 6
When nighttime, uninhabited place, or by a band did not

facilitate the commission of the crime, was not especially
sought for, or was not taken advantage of.
When four armed persons, who casually met another group of three
armed persons in an uninhabited place at nighttime, quarreled with the latter
and, in the heat of anger, the two groups fought against each other, resulting in
the death of one of the three which formed the other group, nighttime,
uninhabited place, and by a band are not aggravating circumstances.
Reason: When the meeting between the offenders and the group of the
deceased was casual, the offenders could not have
sought for the circumstances of nighttime, uninhabited place and their forming
a band. When the offenders attacked the group of the deceased in the heat of
anger, they could not have taken advantage
of such circumstances. And since they did not afford the offenders any
advantage, such circumstances could not have facilitated the commission of the
crime.
"By a band" is aggravating in crimes against property or

against persons or in the crime of illegal detention or
treason.
The aggravating circumstance of by a band is considered in crimes
against property (People vs. Corpus, C.A., 43 O.G. 2249) and in crimes against
persons. (People vs. Laoto, 52 Phil. 401,408; People vs. Alcaraz, 103 Phil. 533,
549; People vs. Aspili, G.R. Nos. 89418-19, Nov. 21, 1990, 191 SCRA 530, 543)
It was taken into account also in illegal detention (U.S. vs. Santiago, 2 Phil. 6,
8), and in treason. (People vs. Manayao, 44 O.G. 4868)
Not applicable to crimes against chastity.

Thus, in the crime of rape committed by four armed persons, this
circumstance was not considered. (People vs. Corpus, C.A., 43 O.G. 2249)
Abuse of superior strength and use of firearms, absorbed

in aggravating circumstance of "by a band."
The aggravating circumstance of taking advantage of their superior
strength and with the use of firearms is absorbed by the generic aggravating
circumstance of the commission of the offense by a band. (People vs.
Escabarte, G.R. No. 42964, March 14, 1988)
372
Par. 7 On Occasion of Calamity or Misfortune
"By a band" is inherent in brigandage.

In the crime of brigandage, which is committed by more than three
armed persons forming a band of robbers (Art. 306), the circumstance that the
crime was committed by a band should not be considered as aggravating,
because it is inherent in or is necessarily included in denning the crime.
"By a band" is aggravating in robbery with homicide.

In the cases of People vs. Sawajan, 53 Phil. 689,693, and People vs. Uday,
85 Phil. 498, 503, it was held that in the imposition of the penalty for the crime
of robbery with homicide, the aggravating circumstance that the crime was
committed by a band should be taken into consideration.
Par. 7. — That the crime be committed on the occasion of a conflagration,

shipwreck, earthquake, epidemic or other calamity or
misfortune.

The basis of this aggravating circumstance has reference to the time of
Reason for the aggravation.

The reason for the existence of this circumstance is found in the debased
form of criminality met in one who, in the midst of a great calamity, instead of
lending aid to the afflicted, adds to their suffering by taking advantage of their
misfortune to despoil them. (U.S. vs. Rodriguez, 19 Phil. 150, 157)
Example:
An example of this circumstance is the case of a fireman who commits
robbery in a burned house, or that of a thief who immediately after a
destructive typhoon steals personal property from the demolished houses.
Aid of Armed Men, etc. Par. 8
The offender must take advantage of the calamity or
misfortune.
373
Thus, if the accused was provoked by the offended party to commit the
crime during the calamity or misfortune, this aggravating circumstance may
not be taken into consideration for the purpose of increasing the penalty
because the accused did not take advantage of it.
"Chaotic condition" as an aggravating circumstance.

The phrase "or other calamity or misfortune" refers to other conditions
of distress similar to those precedingly enumerated, that is, "conflagration,
shipwreck, earthquake or epidemic." Hence, chaotic conditions after
liberation is not included under this paragraph. (People vs. Corpus, C.A., 43
O.G. 2249)
But in the case of People vs. Penjan, C.A., 44 O.G. 3349, the chaotic
condition resulting from the liberation of San Pablo was considered a
calamity.
The development of engine trouble at sea is a misfortune, but it does not
come within the context of the phrase "other calamity or misfortune," as used
in Art. 14, par. 7 of the Revised Penal Code, which refers to other conditions of
distress similar to those precedingly enumerated therein, namely,
"conflagration, shipwreck, earthquake or epidemic," such as the chaotic
conditions resulting from war or the liberation of the Philippines during the
last World War. Clearly, no condition of great calamity or misfortune existed
when the motor banca developed engine trouble. (People vs. Arpa, No. L-
26789, April 25, 1969, 27 SCRA 1037, 1045)
Par. 8. — That the crime be committed with the aid of( 1) armed men, or
(2) persons who insure or afford impunity.

It is based on the means and ways of committing the crime.
Requisites of this aggravating circumstance.

1. That armed men or persons took part in the commission of the
crime, directly or indirectly.
Par. 8 Aid of Armed Men, etc.
2. That the accused availed himself of their aid or relied upon them
when the crime was committed.
Rule for the application of this circumstance.
374
The casual presence of armed men near the place where the crime was
committed does not constitute an aggravating circumstance when it appears
that the accused did not avail himself of their aid or rely upon them to commit
the crime.
The armed men must take part directly or indirectly.

The accused stabbed the deceased to death.
"The testimony of the accused, corroborated by that of the witness for
the prosecution, is that the crime was committed by him (accused) alone,
without assistance from any one. It is true that in the house near the place
where the crime was committed there were ten men armed with daggers, and
five without arms, but these men took no part, directly or indirectly, in the
commission of the crime, and it does not appear that they heard the
conversation which caused the sudden determination on the part of the
accused to kill the deceased. The accused, therefore, did not avail himself of
their aid or rely upon them to commit the crime." (U.S. vs. Abaigar, 2 Phil.
417, 418)
Examples of "with the aid of armed men."

A, in order to get rid of her husband, secured the services of other
Moros by promising them rewards and had them kill her husband. In
accordance with the plan, they armed themselves with clubs, went to the house
of the victim and clubbed him to death while A held a lighted lamp. A also
supplied them with rope with which to tie her husband. In this case, A
committed parricide "with the aid of armed men." (People vs. Ilane, G.R. No.
L-45902, May 31, 1938)
O and L were prosecuted for robbery with rape. It appeared from their
written confessions that they had companions who were armed when they
committed the crime. It was held that they were guilty of robbery with rape
with the aggravating circumstance of aid of armed men. (People vs. Ortiz, 103
Phil. 944, 949)
Aid of Armed Men, etc. Par. 8
Exceptions:
(1) This aggravating circumstance shall not be considered when both
the attacking party and the party attacked were equally armed.
(Albert)
(2) This aggravating circumstance is not present when the accused as
well as those who cooperated with him in the commission of the
crime acted under the same plan and
375
for the same purpose. (People vs. Piring, 63 Phil. 546, 553; People
vs. Candado, No. L-34089, Aug. 1, 1978, 84 SCRA 508, 524)
"With the aid of armed men" (Par. 8), distinguished from

"by a band." (Par. 6)
By a band requires that more than three armed malefactors shall have
acted together in the commission of an offense. Aid of armed men is present
even if one of the offenders merely relied on their aid, for actual aid is not
necessary.
"Aid of armed men" is absorbed by "employment of a

band."
Thus, it is improper to separately take into account against the accused
the aggravating circumstances of (1) the aid of armed men, and (2)
employment of a band in appraising the gravity of the offense, in view of the
definition of band which includes any group of armed men, provided they are
at least four in number. (People vs. Manayao,
78 Phil. 721, 728)
Note: If there are four armed men, aid of armed men is absorbed in
employment of a band. If there are three armed men or less,
aid of armed men may be the aggravating circumstance.
"Aid of armed men" includes "armed women."

Aid of armed women is aggravating in kidnapping and serious illegal
detention. (People vs. Licop, 94 Phil. 839, 846)
But see People vs. Villanueva, 98 Phil. 327, where it was opined that
some use of arms or show of armed strength is necessary to guard
Par. 9 Recidivist
a kidnap victim to prevent or discourage escape and so in a sense, it may be

justly regarded as included in or absorbed by the offense itself, (p. 340)
Par. 9. — That the accused is a recidivist.

This is based on the greater perversity of the offender, as shown by his
inclination to crimes.
376
Who is a recidivist?
A recidivist is one who, at the time of his trial for one crime, shall have
been previously convicted by final judgment of another crime embraced in the
same title of the Revised Penal Code. (People vs. Lagarto, G.R. No. 65833,
May 6,1991, 196 SCRA 611, 619)
Requisites:
1. That the offender is on trial for an offense;

2. That he was previously convicted by final judgment of another
crime;
3. That both the first and the second offenses are embraced in the
same title of the Code;
4. That the offender is convicted of the new offense.
"At the time of his trial for one crime."

What is controlling is the time of trial, not the time of the commission of
the crime. It is not required that at the time of the commission of the crime,
the accused should have been previously convicted by final judgment of
another crime.
Meaning of "at the time of his trial for one crime."

The phrase "at the time of his trial" should not be restrictively
construed as to mean the date of arraignment. It is employed in its general
sense, including the rendering of the judgment. It is meant to include
everything that is done in the course of the trial, from
Recidivist Par. 9
arraignment until after sentence is announced by the judge in open court.
(People vs. Lagarto, supra)
Held: The accused was not a recidivist. (People vs. Baldera, 86 Phil. 189,
193)
No recidivism if the subsequent conviction is for an offense committed before the

offense involved in the prior conviction.
The accused was convicted of robbery with homicide committed on
December 23,1947. He was previously convicted of theft committed on
December 30, 1947.
377
Held: The accused was not a recidivist. (People vs. Baldera, 86 Phil. 189)
"Previously convicted by final judgment."

The accused was prosecuted and tried for theft, estafa and robbery.
Judgments for three offenses were read on the same day. Is he a recidivist?
No, because the judgment in any of the first two offenses was not yet final
when he was tried for the third offense.
Sec. 7 of Rule 120 of the Revised Rules of Criminal Procedure provides
that except where the death penalty is imposed, a judgment in a criminal case
becomes final (1) after the lapse of the period for perfecting an appeal, or (2)
when the sentence has been partially or totally satisfied or served, or (3) the
accused has waived in writing his right to appeal, or (4) the accused has
applied for probation. Sec. 6 of Rule 122 of the Revised Rules of Criminal
Procedure provides that "[a]n appeal must be taken within fifteen (15) days
from promulgation or notice of the judgment or order appealed from."
The present crime and the previous crime must be

"embraced in the same title of this Code."
Thus, if the accused had been twice convicted of violation of section 824
of the Revised Ordinances of the City of Manila and subsequently he was
prosecuted for violation of Article 195 of the Revised Penal Code concerning
gambling, he is not a recidivist. (People vs. Lauleco,
C.A., 36 O.G. 956) When one offense is punishable by an ordinance or special
law and the other by the Revised Penal Code, the two offenses are not
embraced in the same title of the Code.
Par. 9 Recidivist
But recidivism was considered aggravating in a usury case where the

accused was previously convicted of the same offense. Under its Art. 10, the
Revised Penal Code should be deemed as supplementing special laws of a
penal character. (People vs. Hodges, 68 Phil. 178, 188)
Examples of crimes embraced in the same title of the

Revised Penal Code.
Robbery and theft are embraced in Title Ten, referring to crimes
against property. Homicide and physical injuries are embraced in Title Eight,
referring to crimes against persons. The felonies denned and penalized in
Book II of the Revised Penal Code are grouped in different titles. Title Ten
and Title Eight are among them.
378
There is recidivism even if the lapse of time between two
felonies is more than 10 years.
Recidivism must be taken into account as an aggravating circumstance
no matter how many years have intervened between the first and second
felonies. (People vs. Colocar, 60 Phil. 878, 884; See also People vs. Jaranilla,
No. L-28547, Feb. 22, 1974, 55 SCRA
563, 575, where the accused admitted their previous convictions.)
Pardon does not obliterate the fact that the accused was a
recidivist; but amnesty extinguishes the penalty and its ef-
fects.
This is the ruling in the case of U.S. vs. Sotelo, 28 Phil. 147,
160. According to Art. 89, amnesty extinguishes the penalty and all its effects.
There is no such provision with respect to pardon.
Therefore, pardon does not prevent a former conviction from being
considered as an aggravating circumstance.
The accused-appellant admitted during the trial that he was once
convicted of the crime of homicide but he was granted an absolute pardon
therefor. The lower court properly considered recidivism since a pardon for a
preceding offense does not obliterate the fact that the accused is a recidivist
upon his conviction of a second offense embraced in the same title of the
Revised Penal Code. (People vs. Lacao, Sr., G.R. No. 95320, Sept. 4, 1991, 201
SCRA 317, 330)
379
Reiteration or Habituality Par. 10
Par. 10. — That the offender has been previously punished for an offense
to which the law attaches an equal or greater penalty or for
two or more crimes to which it attaches a lighter penalty.

The basis is the same as that of recidivism, i.e., the greater perversity of
the offender as shown by his inclination to crimes.
Requisites:
1. That the accused is on trial for an offense;

2. That he previously served sentence for another offense to which
the law attaches an equal or greater penalty, or for two or more
crimes to which it attaches lighter penalty than that for the new
offense; and
3. That he is convicted of the new offense.
The accused was convicted of homicide, less serious physical injuries,
and slight physical injuries, all committed on January 14. 1979. He was found
by the trial court to have committed offenses prior to and after that date, as
follows: (1) prior to January, 1979, he was arrested and accused of the crime
of theft; (2) on May 15, 1973, he was likewise charged for physical injuries but
said case was amicably settled; (3) on January 15,1973, he was likewise
charged for the crime of theft and was convicted of said offense; (4) he was
likewise charged and convicted in another criminal case; (5) he was also
charged for theft but said case was settled amicably; and (6) he was charged
and convicted for theft on October 30,1982. In reiteracion or habituality, it is
essential that the offender be previously punished, that is, he has served
sentence, for an offense in which the law attaches, or provides for an equal or
greater penalty than that attached by law to the second offense, or for two or
more offenses, in which the law attaches a lighter penalty. The records did not
disclose that the accused has been so previously punished. Reiteracion or
habituality is not attendant. (People vs. Villapando, G.R. No. 73656, Oct.
5,1989, 178 SCRA 341, 355)
"Has been previously punished."

This phrase in paragraph 10 means that the accused previously served
sentence for another offense or sentences for other
Par. 10 Reiteracion or Habituality
380
offenses before his trial for the new offense. (See People vs. Abella, No. L-
32205, Aug. 31, 1979, 93 SCRA 25, 48, where the rule was applied.)
The second requisite is present: (1) when the penalty provided by law for
the previous offense is equal to that for the new
offense; or (2) when the penalty provided by law for the previous offense is
greater; or (3) when the accused served at least two sentences, even if the
penalties provided by law for the crimes are lighter.
"Punished for an offense to which the law attaches an

equal xxx penalty."
A served sentence for forcible abduction (Art. 342) punishable by
reclusion temporal, that is from 12 years and 1 day to 20 years. Later, after A
was released from prison, he committed homicide (Art. 249) punishable also
by reclusion temporal. In fixing the penalty for homicide, the court will have to
consider the aggravating circumstance of habituality against A.
"Punished for an offense to which the law attaches x x x

greater penalty."
The accused once served sentence for homicide punishable by a penalty
ranging from 12 years and 1 day to 20 years. Now, he is convicted of
falsification punishable by a penalty ranging from 6 years and 1 day to 12
years. Is there reiteracion or habituality in this case? Yes, because the penalty
for homicide for which he served sentence is greater than that for the new
offense (falsification).
Suppose it was falsification first and homicide now? Then, there is no
habituality, because the penalty for the first offense is less than that for the
second offense. The penalty for the first offense must at least be equal to that
for the second offense.
Suppose it was homicide before and homicide now? Then, there is
recidivism, because the first and the second offenses are embraced in the same
title of the Code. Although the law requires only final judgment in recidivism,
even if the convict served sentence for one offense, there is still recidivism,
provided the first and the second offenses are embraced in the same title of the
Code.
Reiteracion or Habituality Par. 10
"Punished x x x for two or more crimes to which it

attaches a lighter penalty."
381
A served 30 days imprisonment for theft; later, he served 2 months for
estafa; now he is tried for homicide which is punishable with reclusion
temporal, that is, 12 years and 1 day to 20 years. Note that for the previous two
offenses, the law provides lesser penalties.
It is the penalty attached to the offense, not the penalty

actually imposed.
Paragraph No. 10 of Art. 14 speaks of penalty attached to the offense,
which may have several periods. Hence, even if the accused served the penalty
of prision mayor in its minimum period and is now convicted of an offense for
which the penalty of prision mayor maximum is imposed, there is still
habituality, provided that the penalty attached to the two offenses is prision
mayor in its full extent.
Reiteracion or habituality, not always aggravating.

If, as a result of taking this circumstance into account, the penalty for
the crime of murder would be death and the offenses for which the offender
has been previously convicted are against property and not directly against
persons, the court should exercise its discretion in favor of the accused by not
taking this aggravating circumstance into account. (1 Viada, 310)
Recidivism and reiteracion, distinguished.

The circumstance of reiteracion may be distinguished from that of
recidivism as follows:
(a) In reiteracion, it is necessary that the offender shall have served
out his sentence for the first offense; whereas, in recidivism, it is
enough that a final judgment has been rendered in the first
offense.
(b) In reiteracion, the previous and subsequent offenses must not be
embraced in the same title of the Code; whereas, recidivism,
requires that the offenses be included in the same title of the
Code.
Par. 10 Reiteracion or Habituality
(c) Reiteracion is not always an aggravating circumstance; whereas,

recidivism is always to be taken into consideration in fixing the
penalty to be imposed upon the accused.
The four forms of repetition are:
382
1. Recidivism. (Paragraph 9, Art. 14)
2. Reiteracion or habituality. (Paragraph 10, Art. 14)

3. Multi-recidivism or habitual delinquency. (Art. 62, paragraph 5)
4. Quasi-recidivism. (Art. 160)

The first two are generic aggravating circumstances, while the third is
an extraordinary aggravating circumstance. The fourth is a special aggravating
circumstance.
Habitual delinquency.
There is habitual delinquency when a person, within a period of ten
years from the date of his release or last conviction of the crimes of serious or
less serious physical injuries, robbery, theft, estafa or falsification, is found
guilty of any of said crimes a third time or oftener. (Art. 62, last paragraph) In
habitual delinquency, the offender is either a recidivist or one who has been
previously punished for two or more offenses (habituality). He shall suffer an
additional penalty for being a habitual delinquent.
Quasi-recidivism.
Any person who shall commit a felony after having been convicted by
final judgment, before beginning to serve such sentence, or while serving the
same, shall be punished by the maximum period of the penalty prescribed by
law for the new felony. (Art. 160)
Defendant, while serving sentence in Bilibid for one crime, struck and
stabbed the foreman of the brigade of prisoners. Under Article 160 of the
Code, he shall be punished with the maximum period of the penalty
prescribed by the law for the new felony. (People vs. Durante,
53 Phil. 363, 372)
Price, Reward or Promise Par. 11
Par. 11. — That the crime be committed in consideration of a price, reward

or promise.
Basis:
motivating power itself.
383
This aggravating circumstance presupposes the
concurrence of two or more offenders.
When this aggravating circumstance is present, there must be two or
more principals, the one who gives or offers the price or promise and the one
who accepts it, both of whom are principals—to the former, because he
directly induces the latter to commit the crime, and the latter because he
commits it. (1 Viada, 262)
Is this paragraph applicable to the one who gave the price

or reward?
When this aggravating circumstance is present, it affects not only the
person who received the price or the reward, but also the person who gave it.
(U.S. vs. Parro, 36 Phil. 923, 924; U.S. vs. Maharaja
Alim, 38 Phil. 1, 7)
The established rule in Spanish jurisprudence is to the effect that the
aggravating circumstance of price, reward or promise thereof affects equally
the offeror and the acceptor. (People vs. Alincastre, No. L-29891, Aug. 30,
1971, 40 SCRA 391, 408; People vs. Canete,
No. L-37945, May 28, 1984,129 SCRA 451, 459)
P procured an ignorant man to kill the brother and grandniece of
P for a reward of P60. The ignorant man, following the instruction of P, killed
them. Held: Murder by inducement of a price is committed. (U.S. vs. Parro,
supra)
In the case of U.S. vs. Parro, price was a qualifying aggravating
circumstance.
The aggravating circumstance that the crime was committed for hire or
reward can be applied to the instigator of the crime. (U.S.
vs. Gamao, 23 Phil. 81)
But in the case of People vs. Talledo and Timbreza, 85 Phil. 539, it was
held that the aggravating circumstance of price or reward
Par. 11 Price, Reward or Promise
cannot be considered against the other accused for the reason that it was not
she who committed the crime in consideration of said price
or reward.
If the price, reward or promise is alleged in the information as a
qualifying aggravating circumstance, it shall be considered against all the
accused, it being an element of the crime of murder. In the case of Talledo and
384
Timbreza, price was considered as a generic aggravating circumstance only,
because it was not alleged to qualify the crime to murder.
Price, reward or promise must be for the purpose of

inducing another to perform the deed.
The evidence must show that one of the accused used money or other
valuable consideration for the purpose of inducing another to perform the
deed. (U.S. vs. Gamao, 23 Phil. 81)
If without previous promise it was given voluntarily after the crime had
been committed as an expression of his appreciation for the sympathy and aid
shown by other accused, it should not be taken into consideration for the
purpose of increasing the penalty. (U.S. vs.
Flores, 28 Phil. 29, 34)
The evidence shows that there was an offer of a reward by appellant
Pascual Bartolome, and a promise by appellant Santos, but the evidence is not
conclusive that appellant Ben Perlas participated in the commission of the
robbery by reason of such reward or promise, it appearing that even before
the other accused met with Pascual Bartolome and the other municipal
officials who made the promise, the other accused had already decided to
commit the robbery. No doubt, the reward and the promise aforementioned
must have given the other accused, including appellant Ben Perlas, further
encouragement in the commission of the robbery; however, in our opinion, for
this aggravating circumstance to be considered against the person induced, the
said inducement must be the primary consideration for the commission of the
crime by him. (People vs. Paredes, Nos. L-19149-50, Aug. 16,1968, 24 SCRA
635,662)
By Means of Inundation, Fire, etc. Par. 12
Par. 12. — That the crime be committed by means of inundation, fire,

poison, explosion, stranding of a vessel or intentional
damage thereto, derailment
of a locomotive, or by the use of any other artifice involving
great waste and ruin.

The basis has reference to means and ways employed.
Unless used by the offender as a means to accomplish a

criminal purpose, any of the circumstances in paragraph
385
12 cannot be considered to increase the penalty or to
change the nature of the offense.
As generic aggravating circumstance.
A killed his wife by means of fire, as when he set their house on fire to
kill her; or by means of explosion, as when he threw a hand grenade at her to
kill her; or by means of poison which he mixed with the food of his wife. In
any of these cases, there is only a generic aggravating circumstance, because
they cannot qualify the crime. The crime committed is parricide which is
already qualified by relationship.
When another aggravating circumstance already qualifies the crime,
any of these aggravating circumstances shall be considered as generic
aggravating circumstance only.
When there is no actual design to kill a person in burning a house, it is plain

arson even if a person is killed.
When the crime intended to be committed is arson and somebody dies as a
result thereof, the crime is simply arson and the act resulting in the death of
that person is not even an independent crime of
homicide, it being absorbed. (People vs. Paterno, et al., 85 Phil.
722)
If death resulted as a consequence of arson committed on any of the
properties and under any of the circumstances mentioned in Articles 320 to
326, the court shall impose the death penalty. (Art. 320, Revised Penal Code,
as amended)
On the other hand, if the offender had the intent to kill the victim,
burned the house where the latter was, and the victim died
Par. 12 By Means of Inundation, Fire, etc.
as a consequence, the crime is murder, qualified by the circumstance

that the crime was committed "by means of fire." (See Art. 248)
When used as a means to kill another person, the crime is

murder.
The killing of the victim by means of such circumstances as inundation,
fire, poison, or explosion qualifies it to murder. (Art. 248,
Par. 3)
1. "By means of fire"
386
In a case, the accused had set fire to an automobile under a building,
with the result that the edifice was consumed by fire. One of the inmates of the
house perished in the conflagration.
Held: In order to constitute murder, there should be an actual design to
kill and that the use of fire should be purposely adopted as a means to that end.
(U.S. vs. Burns, 41 Phil. 418, 432)
Hence, if the purpose of the explosion, inundation, fire or poison is to kill
a predetermined person, the crime committed is murder. Once any of these
circumstances is alleged in the information to qualify the offense, it should not
be considered as generic aggravating circumstance for the purpose of
increasing the penalty, because it is an integral element of the offense.
But if a house was set on fire after the killing of the victim, there would
be two separate crimes of arson and murder or homicide. (People vs. Bersabal,
48 Phil. 439,441; People vs. Piring, 63 Phil. 546, 552) There would not be an
aggravating circumstance of "by means of fire."
2. "By means of explosion"
What crime is committed if a hand grenade is thrown into the house
where a family of seven persons live, and as a result of the explosion, the wall
of the house is damaged, endangering the lives of the people there?
The offense is a crime involving destruction. (Art. 324) If one of the
people there died, but there is no intent to kill on the part of the offender, it
will be a crime involving destruction also, but the penalty will be death. But if
there is intent to kill and explosion is used by the offender to accomplish his
criminal purpose, it is murder if the victim dies as a direct consequence
thereof.
By Means of Inundation, Fire, etc. Par. 12
3. "By means of derailment of locomotive"

Under Art. 330, which defines and penalizes the crime of damage to
means of communication, derailment of cars, collision or accident must result
from damage to a railway, telegraph or telephone lines.
But this is without prejudice to the criminal liability for other
consequences of criminal act.
(1) What crime is committed if as a result of the derailment of cars
only property is damaged? It is damage to means of
communication under Art. 330.
387
(2) What is the crime if the death of a person also results without
intent to kill on the part of the offender? It is a complex crime of
damage to means of communication with homicide. (Arts. 330 and
249 in relation to Arts. 4 and 48)
(3) What is the crime committed, if the death of a person resulted and
there was intent to kill on the part of the offender? It is murder,
because the derailment of cars or locomotive was the means used
to kill the victim. (Art. 248)
(4) Must this aggravating circumstance be considered to raise the
penalty, if it already qualifies the crime to murder? No, because of
Art. 62, par. 1, which provides that when the aggravating
circumstance is included by the law in defining a crime, it shall not
be taken into consideration for the purpose of increasing the
penalty.
It will be noted that each of the circumstances of "fire," "explosion,"
and "derailment of a locomotive" may be a part of the definition of particular
crime, such as, arson (Art. 320), crime involving destruction (Art. 324), and
damages and obstruction to means of communication. (Art. 330)
In these cases, they do not serve to increase the penalty, because they are
already included by the law in defining the crimes.
Par. 12 distinguished from Par. 7.

Under par. 12, the crime is committed by means of any of such acts
involving great waste or ruin. Under par. 7, the crime is committed on the
occasion of a calamity or misfortune.
388
Evident Premeditation Par. 13
Par. 13. — That the act be committed with evident premedita-

tion.

The basis has reference to the ways of committing the crime, because
evident premeditation implies a deliberate planning of the act before
executing it.
Illustration of deliberate planning of the act before

executing it.
Pastor Labutin had planned to liquidate Simplicio Tapulado. The plan
could be deduced from the outward circumstances shown from the time he
walked with Vicente Ompad and Angel Libre (the triggermen) to the house of
Lucio Samar where he caused his coaccused to be drunk, the breaking out of
his plan to kill the victim to his co-accused at the time when he knew that they
were already drunk, his remark that he had grudge against the victim in reply
to the comment of Vicente Ompad that he had no ill-feeling against him
(victim), his immediate action to supply the ammunition when Vicente Ompad
remarked about the lack of it, and his being always near the triggermen at the
critical moments when the crime was actually to take place. These
circumstances were means which he considered adequate and effective to
carry out the intended commission. He had sufficient time to reflect and allow
his conscience to overcome his resolution to kill. That Pastor Labutin acted
with known premeditation, is evident indeed. (People vs. Ompad, No. L-23513,
Jan. 31, 1969, 26 SCRA 750, 759)
Evident premeditation may be considered as to principal

by induction.
Thus, when Gil Gamao as far back as March 1907, attempted to induce
Batolinao to kill the priest; in March 1909, two months prior to the murder,
he offered Patpat r*50 to kill the priest; some days prior to the murder, he
said that an anarchistic society had been formed with the object of killing the
friars; and on the afternoon of May 15, he presided at the meeting held in his
own house, where it was agreed that the priest should be killed and he there
deliberately selected his nephew to commit the crime, and directly induced
him to do it; the crime, in so far as Gil Gamao was concerned, was committed
with known premeditation. (U.S. vs. Gamao, 23 Phil. 81, 96)
Essence of premeditation.
389
Par. 13 Evident Premeditation
The essence of premeditation is that the execution of the criminal act

must be preceded by cool thought and reflection upon the resolution to carry
out the criminal intent during the space of time sufficient to arrive at a calm
judgment. (People vs. Durante,
53 Phil. 363, 369)
Evident premeditation has been fully established. The commission of the
crime was premeditated and reflected upon and was preceded by cool thought
and a reflection with the resolution to carry out the criminal intent during a
span of time sufficient to arrive at the hour of judgment. (People vs.
Escabarte, No. L-42964, March 14, 1988,158 SCRA 602, 612)
Thus, evident premeditation may not be appreciated absent any proof as
to how and when the plan to kill was hatched or what time elapsed before it
was carried out. (People vs. Penones, G.R. No. 71153, Aug. 16, 1991, 200
SCRA 624, 635)
Neither is it aggravating where the fracas was the result of rising
tempers, not a deliberate plan (People vs. Padrones, G.R. No. 85823, Sept.
13,1990,189 SCRA 496, 511), nor when the attack was made in the heat of
anger. (People vs. Anin, No. L-39046, June 30, 1975, 64 SCRA 729, 734)
It is not aggravating in the absence of evidence showing that the accused
had, prior to the killing, resolved to commit the same, nor is there proof that
the shooting of the victim was the result of meditation, calculation or
resolution, and the deceased was unknown to the
accused before the incident. (People vs. Samonte, Jr., No. L-31225, June 11,
1975, 64 SCRA 319, 326)
The premeditation must be "evident."

There must be evidence showing that the accused meditated and
reflected on his intention between the time when the crime was conceived by
him and the time it was actually perpetrated. (People vs. Carillo, 77 Phil. 579)
The premeditation must be evident and not merely suspected. (People vs.
Yturriaga, 86 Phil. 534, 538; People vs.
Manangan, No. L-32733, Sept. 11, 1974, 59 SCRA 31, 38-39; People vs. Lacao,
No. L-32078, Sept. 30, 1974, 60 SCRA 89, 95)
Requisites of evident premeditation:

The prosecution must prove —
390
1. The time when the offender determined to commit the crime;

2. An act manifestly indicating that the culprit has clung to his
determination; and
3. A sufficient lapse of time between the determination and
execution, to allow him to reflect upon the consequences of his act
and to allow his conscience to overcome the resolution of his will.
(People vs. Lagarto, G.R. No. 65883, May 6, 1991, 196 SCRA 611,
619-620; People vs. Clamor, G.R. No. 82708, 198 SCRA 642, 655;
People vs.
Pacris, G.R. No. 69986, March 5, 1991, 194 SCRA 654,
664; People vs. Iligan, G.R. No. 75369, Nov. 26, 1990,
191 SCRA 643, 653; People vs. Requipo, G.R. No. 90766, Aug. 13,
1990, 188 SCRA 571, 577 and legions of other cases)
Example:
U.S. vs. Manalinde

(14 Phil. 77)
Facts: The accused who pleaded guilty confessed that his wife died
about one hundred days before; that he was directed by Datto Mupuck
to go huramentado and to kill the two persons he would meet in the
town; that if he was successful in the matter, Mupuck would give him a
pretty woman on his return; that in order to carry out his intention to
kill two persons in the town of Cotabato, he provided himself with a
kris, which he concealed in banana leaves; that he travelled for a day
and a night from his home; that upon reaching the town, he attacked
from behind a Spaniard, and immediately after, he attacked a
Chinaman who was close by; and that he had no quarrel with the
assaulted persons.
Held: Those facts established the aggravating circumstance of
evident premeditation.
Manalinde illustrates the three requisites of evident

premeditation.
First requisite —
391
On a certain date, Manalinde accepted the proposition that he would

turn huramentado and kill the first two persons he would meet in the market
place. On said date, the offender is said to have
determined to commit the crime.
Second requisite —
He undertook the journey to comply therewith and provided himself with
a weapon. The journey and the carrying of the weapon are acts manifestly
indicating that the offender clung to his determination to commit the crime.
Third requisite —
After the journey for a day and a night, he killed the victims. One day
and one night constitute a sufficient lapse of time for the offender to realize
the consequences of his contemplated act.
Other illustrative cases.

The circumstance of evident premeditation is present because on that
very Friday afternoon immediately after the incident at the canteen, appellant
Renegado, giving vent to his anger, told his co-employee, Ramirez, and the
security guard, Velasco, that he was going to kill Lira. That state of mind of
appellant was evident once more when he went to the school dance that same
Friday evening and he asked another security guard if Lira was at the dance.
On the following day, Saturday, appellant met Mrs. Benita Tan to whom he
confided that had he seen Lira the night before he would surely have killed
him. And on Monday morning, knowing Lira's snack time, appellant armed
himself with a knife, proceeded to the canteen at around 9:30 a.m. and seeing
the teacher Lira with his back towards him, stabbed Lira from behind.
(People vs. Renegado, No. L-27031, May 31, 1974,
57 SCRA 275, 290)
What else can better portray this circumstance that the frequent
meetings of the four accused at the Barrio Fiesta Restaurant in order to
discuss, lay out the plan, and secure the different paraphernalia consisting of
the rope, icepick, flannel cloth, flashlight and shovel? Added to this is the
careful selection of an "ideal" site for the grissly happening. (People vs. Ong,
No. L-34497, Jan. 30, 1975, 62 SCRA
174,215)
The admission of the accused that he had with him a .22 caliber revolver
on the afternoon of December 12, 1969; that when he saw the victim driving
his car on P. Paredes Street he followed him up to the corner of P. Paredes
392
and Lepanto Streets where he shot the victim eight times suddenly and
without any warning, speaks eloquently of his plan generated by an all-
consuming hatred, to kill the person whom he considered responsible for all
his misfortunes. The lower court did not, therefore, err in considering the
aggravating circumstance of evident premeditation against the appellant.
(People vs. Benito, No. L-32042, Feb. 13, 1975, 62
SCRA 351, 359)
There is evident premeditation where on the night when deceased
slapped the accused and asked him to kneel down, the latter made it clear that
he would avenge his humiliation; when two days later accused looked inside a
bus for the deceased and not finding him there said that if deceased were
there, he had something for him.
Accused found deceased seated in a jeep and stabbed him. (People vs.
Mojica, No. L-30742, April 30, 1976, 70 SCRA 502, 508-509)
The date and time when the offender determined to

commit the crime essential.
The date and, if possible, the time when the offender determined to
commit the crime is essential, because the lapse of time for the purpose of the
third requisite is computed from that date and time.
Second requisite necessary.

The premeditation must be based upon external acts and not presumed
from mere lapse of time. (U.S. vs. Ricafort, 1 Phil. 173,
176)
The criminal intent evident from outward acts must be notorious and
manifest, and the purpose and determination must be plain and have been
adopted after mature consideration on the part of the persons who conceived
and resolved upon the perpetration of the crime, as a result of deliberation,
meditation and reflection sometime before its commission. (People vs.
Zapatero, No. L-31960, Aug. 15,
1974, 58 SCRA 450, 459; U.S. vs. Banagale, 24 Phil. 69, 73)
Thus, although in offender's confession there is a statement that, on the
morning of June 29, when he heard that Calma was at large, he proposed to
kill him, there is an entire absence of evidence showing that he meditated and
reflected on his intention between the time it was conceived and the time the
crime was actually perpetrated. (People vs. Carillo, 77 Phil. 572)
393
Second requisite exists.

After the offenders had determined (conceived) to commit the crime,
they manifestly indicated that they clung to their determination —
(a) When the crime was carefully planned by the offenders.
(b) When the offenders previously prepared the means which they
considered adequate to carry it out. (U.S. vs. Cornejo, 28 Phil.
457)
(c) When a grave was prepared at an isolated place in the field for
the reception of the body of the person whom the criminals
intended to kill. (U.S. vs. Arreglado, 13 Phil. 660)
(d) When the defendants made repeated statements that the hour of
reckoning of the victim would arrive and armed themselves with
deadly weapons. (People vs. Lopez, 69 Phil. 298)
(e) When the defendant commenced to sharpen his bolo on the
afternoon preceding the night of the crime. (U.S. vs. Liwakas, 17
Phil. 234)
(f) When the defendant, according to his own confession, three times
attempted to take the life of the deceased in order to be able to
marry his widow, with whom he was in love. (People vs. Ducusin,
53 Phil. 280)
(g) Where the accused repeatedly plotted the commission of the
murder over a period of several weeks and, on at least two
occasions, made preliminary efforts to carry it out.
(People vs. Jaravata, G.R. No. L-22029, August 15, 1967,
20 SCRA 1014)
394
Evident Premeditation
' Par. 13
Mere threats without the second element does not show

(1) A threat to kill, unsupported by other evidence which would
disclose the true criminal state of mind of the accused, will only be
construed as a casual remark naturally emanating from a feeling
of rancor and not a resolution of the character involved in evident
premeditation. (People vs. Fuentesuela, G.R. No. L-48273, April
22, 1942)
(2) The mere fact that the accused stated in his extrajudicial
confession that as soon as he heard that the deceased had escaped
from the army stockade he prepared to kill him, is not sufficient to
establish evident premeditation. It is necessary to establish that the
accused meditated on his intention between the time it was
conceived and the time the crime was actually perpetrated.
Defendant's proposition was nothing but an expression of his own
determination to commit the crime which is entirely different from
premeditation. (People vs. Carillo, 77 Phil. 572)
(3) Evident premeditation was not present in the case at bar. It is true
that two days immediately preceding the shooting, appellant
threatened to shoot the deceased and on the eve of the killing,
appellant expressed his intention to finish him. However, there was
no showing, that in between, appellant made plans or sought the
deceased to accomplish the killing. In fact, the killing happened
when appellant was plowing the field and the deceased
unexpectedly appeared thereat. It is clear that appellant's act of
shooting the deceased was not premeditated. The rule is that the
qualifying circumstance of premeditation is satisfactorily
established only if it is proved that the defendant had deliberately
planned to commit the crime, and had persistently and continuously
followed it, notwithstanding that he had ample time to allow his
conscience to overcome the determination of his will, if he had so
desired, after meditation and reflection, x x x . This circumstance
is not proven where there is no evidence as to the time when the
defendant decided to kill the victim. (People vs. Sarmiento, No. L-
19146, May 31, 1963, 8 SCRA 263, 267-268; People vs. Bautista, 79
Phil. 652, 657)
395
Art. 14 .
Par. 13 '
Existence of ill-feeling or grudge alone is not proof of

While the appellant might have nursed a grudge or resentment against
the victim, that circumstance is not a conclusive proof of evident
premeditation. (People vs. Lacao, No. L-32078, Sept. 30, 1974
60 SCRA 89, 95)
It is true that about twelve days before the killing, the accused tried to
injure the victim. He desisted after he was restrained by third persons who
intervened during the altercation. The prosecution's evidence does not show
the steps that the accused took thereafter in order that he could kill the victim
on that fateful hour when the latter was answering a call of nature on the
porch of his house. Possibly, the killing was actually premeditated but the
prosecution's evidence is not conclusive on the presence of that aggravating
circumstance. (People vs. Manangan, No. L-32733, Sept. 11, 1974, 59 SCRA
31,
39)
The mere fact that after lunch time the accused mauled and detained the
victim and that at around four o'clock, while the latter was in their custody, he
was killed, would not mean that there was evident premeditation. (People vs.
Manzano, Nos. L-33643-44, July 31, 1974, 58 SCRA 250, 261-262)
What is sufficient lapse of time?

1. Evident premeditation was held attendant where the accused had
had three day's time to meditate upon the crime which he intended
to commit, and was not prompted by the impulse of the moment.
(People vs. Lasafin, 92 Phil. 668, 670)
2. The existence of evident premeditation is undeniable. From the
incident that dated back one month previously when the deceased
during a fight, slapped the appellant and ordered him to kneel
down, the humiliation inflicted him caused him to persist in the
thought that one day he would be avenged. So he made it clear on
the very same evening of that encounter. Two days later, he stepped
on the running board of a bus, peeped inside and inquired if the
deceased was there. When he did not find him, he made the remark
that if he were there, he had something
396
for him. Under such a circumstance, the premeditation to inflict
harm is quite evident. (People vs. Mojica, 70 Phil. 502, 508-509)
3. Evident premeditation was attendant where the accused had one
whole day to make the necessary preparations from the time he
conceived the idea of attacking the deceased.
(People vs. Dosal, 92 Phil. 577, 881)
4. Evident premeditation was attendant where the accused had more
than one-half day for meditation and reflection and to allow his
conscience to overcome the resolution of his will (veneer las
determinaciones de la voluntad) had he desired to hearken to its
warnings. (U.S. vs. Gil, 13 Phil.
530, 547; People vs. Diaz, No. L-24002, Jan. 21, 1974, 55 SCRA 178,
188)
5. Four hours that intervened between rage and aggression of the
accused is sufficient time for desistance. (People vs. Lazada, 70 Phil.
525, 527)
6. When the accused came to know that the deceased delivered only
100 bundles of corn, he was enraged. That was 3:00 p.m. At 7:00
p.m. of same date, the accused armed himself with a bolo and lance,
went to the house of the deceased, and killed the latter. The lapse of
time of 3 1/2 hours between the plan and the commission of the
crime is sufficient time for the offenders to reflect dispassionately
upon the consequences of their contemplated act. (People vs.
Mostoles, 85 Phil. 883, 892)
7. Evident premeditation was attendant where the accused
apprehended the victims about 10 o'clock in the evening and the
crime was consummated at about 1 o'clock early the following
morning. The accused had sufficient time to meditate and reflect on
the consequences of their act. (People vs. Berdida, No. L-20183,
June 30,1966,17 SCRA 520, 530)
Three hours or less considered sufficient lapse of time.

Evident premeditation preceded the commission of the crime. The slaying
was done about three hours from the time the scheme to kill was plotted.
(People vs. Gausi, G.R. No. L-16498, June 29,1963)
397
Par. 13
But where the defendant constabulary soldier was rebuked by his

superior at around 7:00 a.m. and, a quarter of an hour later, he shot to death
his superior, there was no premeditation because a sufficient time did not
elapse to allow the conscience of the accused to overcome the resolution of his
will if he desired to hearken to its warning. (U.S. vs. Blanco, 18 Phil. 206, 208)
The appellant had only about half an hour for meditation and reflection
from the time he left the house, went to his camp, put on his fatigue uniform,
got a garand rifle and returned to said house, followed the serenaders a short
distance and then fired the two shots. The time was insufficient for full
meditation and reflection. (People vs. Pantoja, No. L-18793, Oct. 11, 1968, 25
SCRA 468, 471)
But in People vs. Dumdum, Jr., No. L-35279, July 30, 1979, 92 SCRA
198, 202, it was held that the killing of the deceased was aggravated by evident
premeditation because the accused conceived of the assault at least one hour
before its perpetration.
However, in the later case of People vs. Crisostomo, No. L-38180,
Oct. 23,1981,108 SCRA 288,297, evident premeditation was rejected because
the accused planned to kill the deceased at 7 o'clock in the morning and the
killing took place at 9 o'clock the same morning. The accused did not have
sufficient time to reflect during the two hours that preceded the killing.
Why sufficient time is required.

The offender must have an opportunity to coolly and serenely think and
deliberate on the meaning and the consequences of what he planned to do, an
interval long enough for his conscience and better judgment to overcome his
evil desire and scheme. (People vs.
Mendoza, 91 Phil. 58, 64)
Evident premeditation contemplates cold and deep meditation, and
tenacious persistence in the accomplishment of the criminal act. (People vs.
Gonzales, 76 Phil. 473) Mere determination to commit the crime does not of
itself establish evident premeditation for it must appear, not only that the
accused made a decision to commit the crime prior to the moment of
execution, but also that his decision was the result of meditation, calculation or
reflection or persistent
attempt. (People vs. Carillo, 77 Phil. 572; People vs. Sarmiento, No.
L-19146, May 31, 1963, 8 SCRA 263, 268)
398
There must be sufficient time between the outward acts
and the actual commission of the crime.
Thus, the mere fact that the accused was lying in wait for his victim just
before the attack is not sufficient to sustain a finding of evident premeditation,
in the absence of proof that he had been lying in wait for a substantial period of
time. (U.S. vs. Buncad, 25 Phil.
530, 539)
But when it appears that the accused borrowed a bolo for the purpose of
committing the crime early in the morning and was lying in wait for some time
before he attacked his victim, evident premedi-
tation is sufficiently established. (U.S. vs. Mercoleta, 17 Phil. 317, 320)
Conspiracy generally presupposes premeditation.

Where conspiracy is directly established, with proof of the attendant
deliberation and selection of the method, time and means of executing the
crime, the existence of evident premeditation can be taken for granted. (U.S.
vs. Cornejo, 28 Phil. 457, 461; People vs. Timbang, 74 Phil. 295, 297)
Exception:
But when conspiracy is only implied, evident premeditation may not be
appreciated, in the absence of proof as to how and when the plan to kill the
victim was hatched or what time had elapsed before it was carried out. (People
vs. Custodio, 97 Phil. 698, 704; People vs. Upao Moro, G.R. No. L-6771, May
28, 1957)
Evident premeditation and price or reward can co-exist.

The aggravating circumstance of price, reward, or promise may be
taken into consideration independently of the fact that premeditation has
already been considered, inasmuch as there exists no incompatibility between
these two circumstances, because if it is certain that as a general rule price or
reward implies premeditation, it is no less certain that the latter may be
present without the former. (U.S.
vs. Robor, 7 Phil. 726, 728)
Premeditation is absorbed by reward or promise. (People vs.
Napenas, G.R. No. L-46314, December 24, 1938)
Par. 13
399
But this rule is applicable only to the inductor. The mere fact that
another executed the act on the promise of reward does not necessarily mean
that he had sufficient time to reflect on the consequences
of his act. (U.S. vs. Manalinde, 14 Phil. 77, 82)
When victim is different from that intended, premeditation

is not aggravating.
Evident premeditation may not be properly taken into account when the
person whom the defendant proposed to kill was different from the one who
became his victim. (People vs. Mabug-at, 51 Phil. 967, 970; People vs. Guillen,
85 Phil 307, 318; People vs. Hilario, et al., G.R. No. 128083, March 16, 2001)
Distinguish the ruling in the Timbol case from that in the Guillen case.
It is true that in the case of People vs. Guillen, 85 Phil. 307, it was held
that when the person killed is different from the one intended to be killed, the
qualifying circumstance of evident premeditation may not be considered as
present; however, in the case of People vs. Timbol, et al., G.R. Nos. L-47471-
47473, August 4,1944, it was held that evident premeditation may be
considered as present, even if a person other than the intended victim was
killed, if it is shown that the conspirators were determined to kill not only the
intended victim but also any one who may help him put a violent resistance.
(People vs. Ubina, 97 Phil. 515, 535)
It is not necessary that there is a plan to kill a particular

person.
For premeditation to exist, it is not necessary that the accused planned to
kill a particular person.
(1) The criminal intent which was carried out was to kill the first two
persons whom the accused should meet at the place where he
intended to commit the crime. Evident premeditation was
considered against the accused. (U.S. vs. Manalinde, 14 Phil. 77,
82)
(2) After careful and thoughtful meditation, the accused decided to
kill, at the first opportunity, whatever individual he should meet
from the town of Macabebe,
on account of the previous illness of his son of cholera which he
attributed to the persons from Macabebe. Held: Inasmuch as the
accused intentionally sought out a native of the town of Macabebe,
a human being, there is no doubt that, actuated by the impulse of
400
his prejudice against any individual from Macabebe and obedient
to his criminal resolution seriously conceived and selected to carry
out vengeance, he perpetrated the crime with premeditation. (U.S.
vs. Zalsos and Ragmac, 40 Phil. 96, 103)
(3) A general attack upon a village having been premeditated and
planned, the killing of any individual during the attack is attended
by the aggravating circumstance of evident premeditation. (U.S.
vs. Rodriguez, 19 Phil. 150,154; U.S. vs. Binayoh, 35 Phil. 23, 30;
U.S. vs. Butag, 38 Phil. 746, 747)
Reason for the difference of the rulings.

When the offender decided to kill a particular person and premeditated
on the killing of the latter, but when he carried out his plan he actually killed
another person, it cannot properly be said that he premeditated on the killing
of the actual victim.
But if the offender premeditated on the killing of any person, like the
offender in the Manalinde case who decided to kill the first two persons he
would meet in the market place, it is proper to consider against the offender
the aggravating circumstance of premeditation,
because whoever is killed by him is contemplated in his premeditation.
And where the victim belonged to the class designated by the accused,
although the victim was not previously determined by him, premeditation is
an aggravating circumstance.
In the case of U.S. vs. Zalsos and Ragmac, supra, the victim, a peddler
from the town of Macabebe, belonged to the class designated by the accused,
that is, "persons from Macabebe" to whom he attributed the existence of a
cholera epidemic in his barrio. Such being the case, any individual from the
town of Macabebe was contemplated in his premeditation.
401
Par. 14 Craft, Fraud or Disguise
Distinguished from the Caranto case.

In the Caranto case, it appears that the victim was also undetermined,
and the threats made by defendant who had lost a fishing boat was that either
he or the thief would be turned into ghost. The killing of the thief afterwards
was held not to be murder qualified by evident premeditation, because there
was merely a threat which was not of a direct and specific character. (U.S. vs.
Caranto, 4 Phil. 256, 257)
Evident premeditation, while inherent in robbery, may be

aggravating in robbery with homicide if the premeditation
included the killing of the victim.
It is inherent in robbery, specially where it is committed by various
persons, because they must have an agreement, they have to meditate and
reflect on the manner of carrying out the crime and they have to act
coordinately in order to succeed. But if there is evident premeditation not only
to steal personal property in the house of Judge Bautista but also to kill him, it
shall be considered to increase the penalty. (People vs. Valeriano, 90 Phil.
15,34; People vs. Nabual, No. L-27758, July 14, 1969, 28 SCRA 747, 752)
If there is no evidence that the conspirators previously planned and
agreed to kill the victims, evident premeditation is not aggravating in robbery
with homicide. (People vs. Pulido, 85 Phil. 695, 709)
Where the killing of a person during the commission of robbery was
only an incident, because their original plan was only to rob, and they killed
the deceased when the latter refused to open the "kaha de yero" and fought
with them, this aggravating circumstance should be disregarded. (People vs.
Pagal, No. L-32040, Oct. 25,1977, 97 SCRA
570, 576)
Par. 14. - That (1) craft, (2) fraud, or (3) disguise be employed.

The basis has reference to the means employed in the commission of the
crime.
Application of this paragraph.

This circumstance is characterized by the intellectual or mental rather
than the physical means to which the criminal resorts to carry out his design.
402
AGGRAVATING CIRCUMSTANCES Art. 14 Craft,
Fraud or Disguise Par. 14
This paragraph was intended to cover, for example, the case where a thief
falsely represents that he is the lover of the servant of a house in order to gain
entrance and rob the owner (astucia); or where (fraude) A simulates the
handwriting of B, who is a friend of C, inviting the latter, without the
knowledge of B, by means of a note written in such simulated hand, to meet B
at the designated place, in order to give A, who lies in wait at the place
appointed, an opportunity to kill C; or where (disfraz) one uses a disguise to
prevent being recognized. (U.S. vs. Rodriguez, 19 Phil. 150, 155)
Craft (involves intellectual trickery and cunning on the part of the accused).
Craft involves the use of intellectual trickery or cunning on the part of
the accused. It is not attendant where the accused was practically in a stupor
when the crime was committed. (People vs. Juliano,
No. L-33053, Jan. 28, 1980, 95 SCRA 511, 526)
Craft is chicanery resorted to by the accused to aid in the execution of
his criminal design. It is employed as a scheme in the execution of the crime. It
is not attendant where the regular driver of the victim feigned illness to enable
another driver to drive for the victim who drove the vehicle first to the house
of the regular driver who said he was already well and so he boarded with his
co-accused, took over the driver's seat, and during the trip shot the victim who
was also on board the vehicle. (People vs. Zea, No. L-23109, June 29, 1984, 130
SCRA 77, 81, 90)
Where four men, having determined to kill a man in an uninhabited
place so that the crime might be less easily discovered, invited him to go with
them on a journey to a distant mountain on the pretense that they would find
there a molave tree from which flowed a liquid supposed to have a peculiar
virtue, and murdered him in a remote and uninhabited place, the aggravating
circumstance of craft was present and should be taken into account for the
purpose of increasing the penalty. (U.S. vs. Gampoiia, 36 Phil. 817, 818, 820;
People vs. Alcaraz, 103 Phil. 533, 549)
The act of the accused in pretending to be bona fide passengers in the
taxicab driven by the deceased, when they were not so in fact, in order not to
arouse his suspicion, and then killing him, constituted
craft. (People vs. Daos, 60 Phil. 143, 154)
The act of the accused in assuming position of authority, pretending to
be a member of the CID when he was not, to gain entrance and be able to be
with the offended party alone in the latter's house, thus enabling him to
403
commit acts of lasciviousness against her, constituted craft. (People vs.

Timbol, C.A., 47 O.G. 1869)
Where defendants pretended to be constabulary soldiers to gain entry
into the place of the victims, craft is properly appreciated as an aggravating
circumstance. (People vs. Saquing, No. L-27903, Dec. 26, 1969, 30 SCRA 834,
844)
The act of the accused in brushing the dirt on the pants of the offended
party, which the accused himself had dirtied, and while the attention of the
offended party was centered on the act of the accused, a confederate of the
accused grabbed the wallet of the offended party from behind, constituted
craft. (People vs. Bagtas, C.A., 47 O.G. 1251)
In a case where the defendants asked the offended party to change a
PlO-bill and, when the latter took out his wallet, the defendants snatched it
from the hand of the offended party, it was held that the crime of robbery was
attended by the aggravating circumstance of craft. (People vs. Mallari, 60 Phil.
400, 402, 405)
Craft was used by the accused in the commission of the offense of rape
when the accused resorted to the use of innocent-looking chocolate candies
which did not arouse the suspicion of the complainant that they contained
deleterious drug, the purpose of the accused in giving them being to weaken
her resistance so that she would not be able to repulse physically and mentally
his sexual assault. (People vs. Guy, C.A., 64 O.G. 13557)
There is craft where the accused lures out the victim from his house in
order to be killed. (People vs. Barbosa, No. L-39779, Nov. 7, 1978, 86 SCRA
217, 225)
Craft was attendant where all the accused with murder in their hearts
pretended to accompany the victim in a friendly manner in going home and in
order to lure him into a false sense of security and making him unmindful of
the tragedy that would befall him, one of them even placed his hands on the
shoulder of the victim while walking. (People vs. Molleda, No. L-34248, Nov.
21, 1978, 86 SCRA 667, 705)
The presence of craft cannot be disputed for the appellant had deceived
the victim into coming to her apartment under the pretext of accompanying
the victim to the bank, and played on the victim's seeming fondness for one
Reynaldo Sioson to lure said victim to the third floor of the apartment where
the appellant committed the crime. The unsuspecting victim found herself
caught in the malevolent trickery practiced by the appellant, the consequence
404
of which proved fatal. (People vs. Rodriguez, No. L-32512, March 31, 1980, 96
SCRA 722, 738-739)
But craft is not attendant where the unlawful scheme could have been
carried out just the same even without the pretense. (People vs. Aspili, G.R.
Nos. 89418-19, Nov. 21,1990,191 SCRA 530, 543)
Craft, when not an aggravating circumstance.

Where craft partakes of an element of the offense, the same may not be
appreciated independently for the purpose of aggravation. Vide, Article 62,
pars. 1 and 2, Revised Penal Code. Thus, when the offender never intended to
genuinely enter into the transaction of purchase and sale with the owner of the
jeep, to the offender the deed of sale being a sham, as he did not pay the price
thereof, the fraud takes the place of trespass in the taking of the jeep involved
in the crime of qualified theft committed by him. (People vs. Tiongson,
C.A., 59 O.G. 4521)
Craft is not clearly established where the evidence shows that the
accused and his companions, who came out from behind a patch of bamboo
trees, did not camouflage their hostile intentions at the incipiency of the
attack, as they announced their presence at the scene of the crime with shouts
and gunshots. (People vs. Cunanan, No. L-30103, Jan. 20, 1977, 75 SCRA 15,
17, 23)
Fraud (insidious words or machinations used to induce the victim to act in a

manner which would enable the offender to carry out his design).
Where the defendants induced their victims to give up their arms upon a
promise that no harm should be done to them (U.S. vs. Abelinde, 1 Phil. 568,
574), and when the latter gave up their arms, the former attacked and killed
them, it was held that there was fraud; and where the defendants, upon the
pretext of wanting to buy a bottie of wine, induced the victim to go down to
the lower story of his dwelling where the wine was stored, entered it when the
door was opened to him, and there commenced the assault which ended in his
death, it was also held that there was fraud. (U.S. vs. Bundal, 3 Phil. 89, 90, 98)
Does gaining entrance by pretending to buy cigarettes or

to drink water constitute craft?
To enter the house of Pedro Levantino, one of the accused shouted from
the outside that they wanted to buy cigarettes, which induced the owner to
open the kitchen for them, and one of them said that they wanted to drink
405
some water which also paved the way for their intrusion in the house. Once
inside, they committed robbery with rape. It was held that the aggravating
circumstance of craft attended the commission of the crime. (People vs. Napili,
85 Phil. 521, 527, citing U.S. vs. Gampona, 36 Phil. 817, and People vs. Daos,
60 Phil. 143)
The facts constituting the aggravating circumstance being similar to
those in the case of U.S. vs. Bundal, supra, it should be fraud.
The accused, stepfather of the offended party, taking advantage of the
absence of the girl's mother, went to the house and took the young girl away,
telling the latter that she was to be taken to her godmother's house. The
accused, however, took the girl to another house where he ravished her. Held:
The accused committed rape, employing fraud. (People vs. De Leon, 50 Phil.
539, 545) Hairline distinction between craft and fraud.
There is craft or fraud when by trickery, accused gained entrance in
victim's house. By pretending they had pacific intentions (to buy chickens) in
desiring to enter Argenio's home, they allayed his suspicions. They gained
entrance into the house with his consent through trickery or deceit. (People vs.
Saliling, No. L-27974, Feb. 27, 1976, 69 SCRA 427, 443)
How is craft distinguished from fraud?

When there is a direct inducement by insidious words or machinations,
fraud is present; otherwise, the act of the accused done in order not to
arouse the suspicion of the victim constitutes craft.
Disguise (resorting to any device to conceal identity).
The fact that the defendant had his face blackened in order that he
should not be recognized at the time he committed the crime constitutes the
aggravating circumstance of disguise. (U.S. vs. Cofrada,
4 Phil. 154, 157)
When the defendant covered his face with handkerchief before
committing the crime, the aggravating circumstance of disguise is present.
(People vs. Piring, 63 Phil. 546, 553)
But if in spite of the use of handkerchief to cover their faces, the culprits
were recognized by the victim, disguise was not considered aggravating.
(People vs. Sonsona, G.R. No. L-8966, May 25,1956)
The accused with two others wore masks to cover their faces. There
could have been no other purpose for this but to conceal their identities
406
particularly for the one who was very much known to the offended parties.
The fact that the mask subsequently fell down thus paving the way for this
one's identification does not render the aggravating circumstance of disguise
inapplicable. (People vs. Cabato,
No. L-37400, April 15,1988, 160 SCRA 98, 110)
In a case where the defendant illegally wore a Constabulary uniform, it
was held that the aggravating circumstance of disguise was present. (People
vs. Gonzalez, 56 Phil. 842 [unrep.])
The use of an assumed name in the publication of a libel constitutes
disguise. (People vs. Adamos, C.A., G.R. No. 43808, Aug. 20,1936)
Disguise, not considered.
It is also worth mentioning that while appellant reportedly had a sort of
a mask and was using sunglasses, these clumsy accouterments could not
constitute the aggravating circumstance of disguise. Legally, disfraz
contemplates a superficial but somewhat effective dissembling to avoid
identification. Here, even if it is true that he assumed that masquerade,
appellant was readily recognizable because his face could easily be seen
together with the identifying feature of his mustache. (People vs. Reyes, G.R.
No. 118649, March 9, 1998)
The purpose of the offender in using any device must be

to conceal his identity.
While it appears that some of the offenders had cloths wrapped about
their heads, it does not appear that this was done as a disguise,
407
Par. 15 Superior Strength or Means to Weaken Defense
but was following rather the custom of the country in which they had been
reared. (U.S. vs. Rodriguez, 19 Phil. 150, 156)
The act of the accused in disguising herself by using her husband's
clothes and a hat given to her by her companion before they continued on
their way to the place where she killed the deceased, was not considered
aggravating circumstance of disguise, because she did it for fear of being
attacked on the way. (U.S. vs. Guysayco, 13 Phil. 292, 293, 296)
The malefactors resorted to a disguise. That circumstance did not

facilitate the consummation of the killing. Nor was it
taken advantage of by the malefactors in the course of the assault. According
to the prosecution's version, at the incipiency of the attack, the accused and
his companions did not camouflage their hostile intentions. They announced
their presence at the scene of the crime with shouts and gunshots. That mode
of attack counteracted whatever deception might have arisen from their
disguise. (People vs. Cunanan, No. L-30103, Jan. 20, 1977, 75 SCRA 15, 23)
Par. 15. — That (1) advantage be taken of superior strength, or (2) means
be employed to weaken the defense.
Meaning of "advantage be taken."

Note the word "advantage" in this paragraph.
To take advantage of superior strength means to use purposely excessive
force out of proportion to the means of defense available to the person
attacked. (People vs. Cabiling, No. L-38091, Dec. 17,
1976,74 SCRA 285,303, citing Albert's Commentaries on the Revised
Penal Code, pp. 126-127; People vs. Sarabia, No. L-31755, March 31, 1980, 96
SCRA 714, 719-720, citing Cabiling; People vs. Cabato, No. L-37400, April 15,
1988, 160 SCRA 98, 110, citing Cabiling; People vs. Carpio, G.R. Nos. 82815-
16, Oct. 31, 1990, 191 SCRA 108, 119, citing Cabato; People vs. Moka, G.R.
No. 88838, April 26, 1991, 196 SCRA 378, 387, citing Cabato)
Illustrations of no advantage of superior strength.

(1) One who attacks another with passion and obfuscation does not
take advantage of his superior strength.
(2) This aggravating circumstance does not apply when a quarrel
arose unexpectedly and the fatal blow was struck at a time when
408
Superior Strength or Means to Weaken Defense Par. 15
the aggressor and his victim were engaged against each other as
man to man. (U.S. vs. Badines, 4 Phil. 594, 595)
In these two cases, the offenders may or might have superior strength,
but they do not or did not take advantage of it.
Illustrations of abuse of superior strength.

(1) An illustration of the cases which fall within this provision is
where, for example, a strong man has ill-treated a child, an old or
decrepit person, or one weakened by disease, or where a person's
physical strength has been overcome by the use of drugs or
intoxicants. In each of these cases, there is a marked difference of
physical strength between the offended party and the offender.
(U.S. vs. Devela, 3 Phil. 625, 628)
(2) The deceased Tomas Martir was unarmed, under the influence of
liquor. He was much smaller than Navarra. Navarra's attack came
after he (Martir) was pushed to the wall by Antonio Santiago. Not
content with this and after Martir tried to escape, Virgilio Cruz
fired at him. Not only that, this was followed by two other shots
from Navarra. Since the aggressors were police officers fully
armed, and the deceased was defenseless and under the influence
of liquor, a clear case of abuse of superiority is present. The two
took advantage of these circumstances to consummate the offense.
(People vs.
Navarra, G.R. No. L-25607, October 14,1968, 25 SCRA 491, 497)
(3) The aggravating circumstance of abuse of superior strength is
attendant where the victim who died was an innocent and tender
baby, barely six months old, and the wounded children were aged
five (5) and twelve (12) years old, because of the marked difference
of physical strength between the offended parties and the offender.
(People vs. Gatcho, No. L-27251, Feb. 26, 1981, 103 SCRA 207,
220)
When the attack was made on the victim alternately, there is no abuse of
superior strength.
Use of superior strength should not be considered even if all the accused
delivered blows upon the victim, because the attack was made on the victim
alternately, one after the other. (People vs. Narciso, No. L-24484, May 28,
1968, 23 SCRA 844, 865-866)
409
Abuse of superior strength when a man attacks a woman

with a weapon.
An attack made by a man with a deadly weapon upon an unarmed and
defenseless woman constitutes the circumstance of abuse of that superiority
which his sex and the weapon used in the act afforded him, and from which
the woman was unable to defend herself. (People vs. Guzman, 107 Phil. 1122,
1127, citing U.S. vs. Camiloy, 36 Phil. 757; U.S. vs. Consuelo, 13 Phil. 612;
People vs. Quesada, 62 Phil. 446)
Illustrations:
a. The accused attacked an unarmed 4 feet, 11-inch girl with a knife.
He had abused the superiority which his sex and weapon
employed afforded him, and from which the deceased would be
unable to defend herself. (People vs.
Brana, No. L-29210, Oct. 31, 1969, 30 SCRA 307, 315)
b. The accused was armed while the victim, a married woman, was
unarmed and she guilelessly approached the group of the accused,
without the least inkling that any harm would befall her, when she
was shot in the back after her hands were tied behind her. Abuse
of superiority was employed in liquidating her. (People vs.
Clementer, No. L-33490, Aug.
30, 1974, 58 SCRA 742, 744, 749)
c. The female victim was stabbed to death. Three men had earlier
invaded her house. Her husband was away fishing with the
husband of her sister who was her only companion and her
sister's one-year-old son. Certainly, an attack by three men
against a helpless and defenseless woman constitutes abuse of
superior strength. (People vs. Patinga, No. L-37912, Jan. 18, 1982,
111 SCRA 52, 58,
62)
No abuse of superior strength in parricide against the wife.
Abuse of superior strength is inherent in the crime of parricide where
the husband kills the wife. It is generally accepted that the husband is
physically stronger than the wife. (People vs. Galapia, Nos. L-39303-05, Aug.
1, 1978, 84 SCRA 526, 531)
That the victim is a woman is inherent in parricide.
410
Abuse of superior strength, however, should not be applied to the case

of a husband who kills his wife, for the reason that sex is inherent in the crime
of parricide. (Decision of the Supreme Court of Spain of April 28, 1873;
People vs. Galapia, 84 SCRA 526) Evidence of relative physical
strength necessary.
But the mere fact that one person was attacked by two aggressors does
not constitute this aggravating circumstance, if the relative physical strength
of the parties does not appear. There must be evidence that the accused were
physically stronger and that they abused such superiority. (People vs. Bustos,
51 Phil. 385, 392; People vs. Diokno, 63 Phil. 601,607) The mere fact of there
being a superiority of numbers is not sufficient to bring the case within
aggravating circumstance. (U.S. vs. Devela, supra; People vs. Maloloy-on, G.R.
No. 85246, Aug. 30, 1990, 189 SCRA 250, 258)
Illustrations:
a. The records of the case are bereft of any information with respect
to the physical conditions of both the accused and the victims.
Thus, abuse of superior strength cannot be considered. (People vs.
Cabato, No. L-37400, April 15,1988,
160 SCRA 98, 110)
b. There was error in appreciating the circumstance of abuse of
superior strength. There is no evidence of the respective or joint
participation of the two accused in assaulting the victim, much less
that they took advantage of their superior strength. (People vs.
Maloloy-on, G.R.
No. 85246, Aug. 30, 1990, 189 SCRA 250, 258)
c. The fact that there were two (2) male persons who attacked the
victim does not per se establish that the crime was committed with
abuse of superior strength there being no proof
of the relative strength of the aggressors and the victim.
(People vs. Carpio, G.R. Nos. 82815-16, Oct. 31,1990, 191 SCRA
108, 119)
When abuse of superior strength is aggravating.

The aggravating circumstance of abuse of superior strength depends on
the age, size and strength of the parties. It is considered whenever there is a
notorious inequality of forces between the victim and the aggressor, assessing
a superiority of strength notoriously advantageous for the aggressor which is
411
selected or taken advantage of by him in the commission of the crime. (People

vs. Carpio, supra; People vs. Cabato, supra; People vs. Moka, supra)
Number of aggressors, if armed, may point to abuse of

superior strength.
In the cases of U.S. vs. Tandoc, 40 Phil. 954,957-958, and People vs.
Caroz, 68 Phil. 521, 527, the greater number of the assaulting party was
considered by the Supreme Court in determining the circumstance of superior
strength. But it will be noted that in those cases, the accused were armed.
It is manifest that defendants acted with abuse of superior strength, for
whereas the three (3) of them were wielding bolos, the victim was unarmed
and trying to flee. Hence, the crime committed was murder, qualified by abuse
of superior strength. (People vs. Verzo, G.R. No. L-22517, Dec. 26, 1967, 21
SCRA 1403, 1410)
But in a case where three persons armed with bolos attacked another
who was armed with a revolver, it was held that there was no abuse of
superior strength, as their strength was almost balanced, a revolver being as
effective, if not more so, than three bolos. (People vs. Antonio, 73 Phil. 421,
424-425)
Similarly, there is no abuse of superior strength where the accused did
not cooperate in such a way as to secure advantage from their combined
strength. The fact that the accused did not conspire to kill the victim implies
that they did not jointly exploit their superior strength. Numerical superiority
does not always mean abuse of superiority. (People vs. Ybanez, Jr., No. L-
30421, March 28, 1974, 56 SCRA 210, 217)
Abuse of superior strength by numerical superiority.

1. The two accused jumped on the victim as he was wrestling with their
companion who has remained at large. It was while they had him thus
outnumbered that one of the ac-
cused delivered the fatal blow. There was abuse of superior
strength. (People vs. Boyles, No. L-15308, May 29, 1964, 11 SCRA
88, 95)
2. The assailants were four in number and were armed with bladed
instruments. The deceased was alone, unarmed, and taken by surprise.
Abuse of superior strength was properly considered. (People vs. Casillar,
No. L-28132, Nov. 25,1969,
30 SCRA 352, 358)
412
3. The three assailants are brothers. Alejandro, who was armed with a bolo
(sondang) lay in wait for the victim and his brother, and they
encountered him as they were fleeing after Joaquin had threatened them.
As the victim retreated, and his brother took refuge in a grassy place,
Joaquin appeared from behind, holding a barbed harpoon
(gata-ao) which he plunged into the victim's back and then tried to
pull it out. While Joaquin was trying to extricate the harpoon
which got stuck because of its hooks, Alejandro stabbed the victim
with his sondang. The victim fell to the ground. Antonieto, also
armed with a sondang, slashed the prostrate victim in the
abdomen. Alejandro and Antonieto repeatedly stabbed him while
Joaquin was pulling out the harpoon. The victim died in
consequence of his numerous wounds. Abuse of superiority is
aggravating. The three assailants took advantage of their combined
strength to overpower the victim. (People vs. Velez, No. L-30038,
July 18, 1974, 58 SCRA 21, 24, 31)
4. There were several assailants who literally ganged up on the victim. He
had to flee because he could not cope with the successive and
simultaneous assaults of his assailants. Even the armed policeman, who
was present at the scene of the fight, could not break up the fight because
the victim had several adversaries. All that the policeman could do was
to fire his carbine into the air. There was marked disparity between the
strength of the victim and the strength of the aggressors who, at the last
stage of the
413
fight, surrounded their quarry, wounded him repeatedly and left him
only when he was sprawled on the ground. Evidently, the assailants
cooperated in such a way as to derive advantage from their combined
strength and to insure the victim's death. Abuse of superiority was
correctly appreciated.
5. Our jurisprudence is exemplified by the holding that where four persons
attacked an unarmed victim but there was no proof as to how the attack
commenced and treachery was not proven, the fact that there were four
assailants would constitute abuse of superiority. (People vs. Garcia, No.
L-30449, Oct. 31,1979, 94 SCRA 14, 28, citing People vs. Lasada, No.
6742, Jan. 26,1912, 21 Phil. 287; U.S. vs. Baiiagale, No. 7870, Jan. 10,
1913, 24 Phil. 69)
6. Abuse of superiority is attendant where two accused, both armed with
knives, had cooperated in such a way as to secure advantage from their
combined superiority in strength and took turns in stabbing the victim
who was unarmed.
(People vs. Diamonon, No. L-38094, Nov. 7,1979,94 SCRA 227, 239)
7. It is manifest that the accused, together with his co-assailants who
unfortunately have not been apprehended, took advantage of their
superior strength, when the four of them, two of whom were armed with
bladed weapons, surrounded and stabbed the unarmed, helpless and
unsuspecting victim. Abuse of superior strength is aggravating.
(People vs. Madlangbayan, No. L-33607, Dec. 14,1979, 94 SCRA 679,
686)
8. Given the fact that the victim, himself unarmed, was simultaneously
attacked by the two appellants and the third accused who has remained
at large, all of them with weapons, they took advantage of superior
strength. (G.R. No. 74736, Feb. 18, 1991, 194 SCRA 120, 128)
9. Advantage of superior strength attends. The number of the assailants
and the firearms and bolos which they used on the victim show notorious
inequality of forces between the victim and the aggressor. (People vs.
Moka, G.R. No. 88838, April 26, 1991, 196 SCRA 378, 386)
415
10 There were four (4) accused, relatively of regular, medium build and
size. Two were armed with "guhi" (piece of bamboo, sharpened
or pointed at one end) and stone and the other two with Indian
arrows. The four were carrying bolos inside a scabbard and tied
to the waist. The victim was unarmed. He had companions but
they did not do anything to help him. Abuse of superior strength
was correctly found to be attendant. (People vs. Penones,
G.R. No. 71153, Aug. 16, 1991, 200 SCRA 624, 635-636)
There is abuse of superior strength when weapon used is

out of proportion to the defense available to the offended
party.
Abuse of superior strength is present not only when the offenders enjoy
numerical superiority or there is a notorious inequality of force between the
victim and the aggressor, but also when the offender uses a powerful weapon
which is out of proportion to the defense available to the offended party.
(People vs. Padilla, 233 SCRA 46)
Simultaneous attack by two persons with revolvers

against a defenseless person is aggravated by superior
strength.
When two persons took part in the crime armed with bolos or revolvers
and made a simultaneous attack upon a defenseless person, the aggravating
circumstance of abuse of superior strength should be taken into consideration.
(U.S. vs. Bahagale, 24 Phil. 69, 71, 83; U.S. vs. Abril, 51 Phil. 670, 675; U.S. vs.
Lasada, 21 Phil. 287, 291) In these cases, the two defendants are both guilty as
principals.
There is no abuse of superior strength when one acted as

principal and the other two as accomplices.
But when the court finds that one of the three accused committed the
crime as principal and the two as accomplices, abuse of superior strength
cannot be taken into consideration, because it would be inconsistent. Where
abuse of superior strength is to be estimated as an aggravating circumstance
from the mere fact that more than one person participated in the offense, it
must appear that the accused cooperated together in some way designed to
weaken the defense. This would make them guilty in the character of
principals. (People vs. Cortez, 55 Phil. 143,148-149; Lumiguis vs. People, G.R.
No. L-20338,
April 27, 1967, 19 SCRA 842, 846)
When there is an allegation of treachery, superior strength

is absorbed.
Like nighttime, superior strength is absorbed and inherent in treachery.
(People vs. Mobe, 81 Phil. 58, 63; People vs. Redona, 87
415
Phil. 743, 745; People vs. Renejane, Nos. L-76954-55, Feb. 26, 1988, 158 SCRA
258, 269; People vs. Centeno, G.R. No. 33284, April 20, 1989,172 SCRA
607,612; People vs. Liston, G.R. No. 63396, Nov. 15, 1989,179 SCRA 415, 421)
Abuse of superior strength is aggravating in coercion and

forcible abduction, when greatly in excess of that required
to commit the offense.
Abuse of superior strength may be present in coercion (Art. 286) or
forcible abduction. (Art. 342; People vs. Fernando, C.A., 43 O.G. 1717)
Although the commission of the crime of coercion or forcible abduction
presupposes superiority of force on the part of the offenders, yet when the
strength availed of is greatly in excess of that required
for the realization of the offense, as where the offenders were very much
superior to the complainant individually and collectively (cf. People vs. Dayug,
49 Phil. 423, 427; People vs. Pineda, 56 Phil. 688,
689, 690), abuse of superior strength should be considered for the purpose of
increasing the penalty.
Other crimes in which abuse of superior strength is

aggravating.
Abuse of superior strength is aggravating in illegal detention (Arts. 267
and 268), where six persons took and carried away the victim from his home
(U.S. vs. Santiago, 4 Phil. 168,169); in robbery with rape, committed by five
armed persons (People vs. Macaya, 85 Phil. 540, 541,544); in multiple rape,
committed by four men (U.S. vs.
Camiloy, 36 Phil. 757, 758); in robbery with homicide, committed by three
men. (People vs. Boyles, No. L-15308, May 29, 1964, 11 SCRA 88, 91-92, 96)
The circumstance of "by a band" and that of "abuse of

superior strength," distinguished.
The circumstance of abuse of superiority was, however, withdrawn by
the prosecution on the ground that since the offense of robbery with homicide
was committed by a band, the element of cuadrilla necessarily absorbs the
circumstance of abuse of superior strength. We believe that said withdrawal
was ill-advised since the circumstances of band and abuse of superiority are
separate and distinct legal concepts.
The element of band is appreciated when the offense is committed by
more than three armed malefactors regardless of the comparative strength of
the victim or victims. Hence, the indispensable components of cuadrilla are (1)
at least four malefactors, and (2) all of the four malefactors are armed. On the
other hand, the gravamen of abuse of superiority is the taking advantage by
the culprits of their collective strength to overpower their relatively weaker
416
victim or victims. Hence, in the latter aggravating factor, what is taken into
account is not the number of aggressors nor the fact that they are armed, but
their relative physical might vis-a-vis the offended party. (People vs. Apduhan,
Jr., No. L-19491, Aug. 30, 1968, 24 SCRA 798,
814-815)
The aggravating circumstance of the commission of the crime by a band
has been established, it appearing that there were more than three armed
malefactors who acted together in the commission of the offense. (People vs.
Escabarte, No. L-42964, March 14, 1988, 158 SCRA 602,
613)
The aggravating circumstance of commission of a crime by a band was
incorrectly appreciated. A band (en cuadrilla) consists of at least four
malefactors who are all armed. When there were only three perpetrators and
two weapons, a kitchen knife and a dagger, the terrible threesome of the
accused did not constitute a band.
(People vs. Ga, G.R. No. 49831, June 27,1990,186 SCRA 790, 797798)
Aggravating circumstances absorbing band.

Abuse of superiority absorbs cuadrilla. If treachery absorbs abuse of
superiority and band (U.S. vs. Abelinde, 1 Phil. 568,572) then it is reasonable
to hold that band should not be treated separately and distinct from abuse of
superior strength. The two circumstances have the same essence which is the
utilization of the combined strength of the assailants to overpower the victim
and consummate the killing.
(People vs. Medrana, No. L-31871, Dec. 14, 1981, 110 SCRA 130, 145)
The aggravating circumstance of by a band is absorbed in treachery.

(People vs. Ampo-an, G.R. No. 75366, July 4, 1990, 187 SCRA 173,189; People
vs. Rojas, Nos. L-46960-62, Jan. 8,1987,147 SCRA 169, 178-179)
Means employed to weaken defense.

The circumstance of employing means to weaken the defense is
illustrated in the case where one, struggling with another, suddenly throws a
cloak over the head of his opponent and while in this situation he wounds or
kills him. (U.S. vs. Devela, supra)
One who, while fighting with another, suddenly casts sand or dirt upon
the latter's eyes and then wounds or kills him, evidently employs means which
weaken the defense of his opponent. (People vs. Siaotong, G.R. No. L-9242,
March 29, 1957)
But the mere fact that a Garand rifle was used in killing the victim does
not necessarily raise the aggravating circumstance of employing means to
417
weaken the defense. (People vs. Tunhawan, No. L-81470, Oct. 27, 1988, 166
SCRA 638, 649)
Intoxicating the victim to weaken defense.

This aggravating circumstance exists also when the offender, who had
the intention to kill the victim, made the deceased intoxicated, thereby
materially weakening the latter's resisting power. (People vs. Ducusin, 53 Phil.
280, 289)
If the state of intoxication is such that the victim cannot

put up any sort of defense — treachery.
If in his intoxicated state it was impossible for the victim to put up any
sort of resistance at the time he was attacked, treachery may be considered.
(People vs. Ducusin, supra)
Applicable only to crimes against persons, etc.

This circumstance is applicable only to crimes against persons, and
sometimes against person and property, such as robbery with physical
injuries or homicide.
Note: In People vs. Guy, supra, employing means to weaken the

defense is not the aggravating circumstance. It is craft.
418
Means to weaken the defense absorbed in treachery.
The aggravating circumstance of employing means to weaken the
defense is absorbed by treachery. (People vs. Tunhawan, No. L81470, Oct. 27,
1988, 166 SCRA 638, 649-650)
Par. 16. — That the act be committed with treachery (alevosia).

The basis has reference to the means and ways employed in the
commission of the crime. Meaning of treachery.
There is treachery when the offender commits any of the crimes against
the person, employing means, methods or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make. (Art. 14, par.
16, Revised Penal Code; People vs. Lacao, Sr., G.R. No. 95320, Sept. 4, 1991,
201 SCRA 317, 330; People vs. Velaga, Jr., G.R. No. 87202, July 23, 1991, 199
SCRA
518,523)
Treachery means that the offended party was not given opportunity to
make a defense. (People vs. Tiozon, G.R. No. 89823, June 19, 1991,198 SCRA
368, 387, citing earlier cases; People vs. Narit, G.R. No. 77087, May 23,
1991,197 SCRA 334, 351, citing earlier cases)
Treachery attended the shooting of the deceased. The attack was
sudden, unexpected, without warning, and without giving the victim an
opportunity to defend himself or repel the aggression, as, in fact, the deceased
did not sense any danger that he would be shot by the assailant as there was
no grudge or misunderstanding between them. (People vs. Rey, G.R. No.
80089, April 13,1989,172 SCRA 149, 158)
Rules regarding treachery.

(1) Applicable only to crimes against the person.
This is based on the phrase "crime against the person" in the
definition of treachery.
Treachery Par. 16
419
Par. 16 Treachery
(2) Means, methods or forms need not insure accomplishment of
crime.
It is not necessary that the means, methods or forms
employed in the execution of the crime insure its accomplishment,
as the law says, "to insure its execution" only.
(3) The mode of attack must be consciously adopted.

This is based on the phrase "employing means, methods, or
forms in the execution which tend directly and
specially," in the definition of treachery.
Applicable only to crimes against persons.

This circumstance is applicable only to crimes against persons.
It is not necessary that the mode of attack insures the

consummation of offense.
The treacherous character of the means employed in the aggression does
not depend upon the result thereof but upon the means itself, in connection
with the aggressor's purpose in employing it. Otherwise, there would be no
attempted or frustrated murder qualified by treachery. For this reason, the
law does not require that the treacherous means insure the execution of the
aggression, without risk to the person of the aggressor arising from the
defense which the offended party might make, it being sufficient that it tends
to this end. (People vs. Parana, 64 Phil, 331, 336)
So it has been held that where the accused attacked the offended party
unexpectedly and the wounds inflicted by him upon the latter would have
caused death had not the weapon whereby the same were inflicted met with an
obstacle, such as the ribs, which prevented its penetrating the lungs and
kidneys, alevosia is present and the
defendant is guilty of frustrated murder. (People vs. Reyes, 47 Phil. 635, 639)
Also, where one assaulted another from behind, but failed to kill the
latter because the wound inflicted was not sufficient to cause death, the attack
was characterized by treachery even if the offender did not attain his end.
The above illustrations are examples of frustrated murder and
attempted murder, respectively, characterized by treachery. Treachery was
considered, even if the offense was not consummated.
Treachery cannot be presumed.
420
The suddenness of attack does not, of itself, suffice to support a finding
of alevosia, even if the purpose was to kill, so long as the decision was made all
of a sudden and the victim's helpless position was accidental. The qualifying
circumstance of treachery may not be simply deduced from presumption as it
is necessary that the existence
of this qualifying or aggravating circumstance should be proven as fully as the
crime itself in order to aggravate the liability or penalty incurred by the
culprit. (People vs. Ardisa, No. L-29351, Jan. 23, 1974, 55 SCRA 245, 258;
People vs. Narit, G.R. No. 77087, May 23,
1991, 197 SCRA 334, 351; People vs. Tiozon, G.R. No. 89823, June
19,1991,198 SCRA 368, 387-388; People vs. Lubreo, G.R. No. 74146,
Aug. 2, 1991, 200 SCRA 11, 28)
Where no particulars are known as to the manner in which the
aggression was made or how the act which resulted in the death of the
deceased began and developed, it can in no way be established from mere
suppositions that the accused perpetrated the killing with treachery. The
wound in the back might have been the last one inflicted or might have been
inflicted by accident in the course of the fight. (U.S. vs. Perdon, 4 Phil. 141,
143-144; U.S. vs. Panagilion, 34 Phil. 786, 792-793)
Illustrations:
1. There is no treachery under these circumstances: the assailant
was alone while his victim had four (4) companions nearby who
could respond instinctively upon seeing their injured companion;
an altercation preceded the attack; and the meeting of the victim
and the assailant was only accidental. (People vs. Velaga, Jr., G.R.
No. 87202, July 23, 1991, 199 SCRA 518, 523)
2. Neither is treachery attendant where no witness who could have
seen how the deceased was shot was presented.
(People vs. Tiozon, supra, at 389)
3. Nor is treachery present in these circumstances: the witness to the
attack did not see how it all began and could Treachery
Par. 16
not provide the details on how the initial attack was commenced
and how it developed until the victim fell to the ground at which
time he saw the fallen victim being beaten; the autopsy report
shows no back injury; and the attack was made in broad daylight,
on a public road and in an inhabited area, with the use of a wooden
club, all indicative of a casual and not a planned encounter.
(People vs. Narit,
421
Par. 16 Treachery
supra, at 351-352)
4. Neither is the circumstance attendant where the attack was

frontal, indicating that the victim was not totally without
opportunity to defend himself, and all surrounding circumstances
indicate that the attack was the result of a rash and impetuous
impulse of the moment rather than from a deliberate act of the
will. (People vs. Tugbo,
Jr., G.R. No. 75894, April 22, 1991, 196 SCRA 133, 138139)
Exceptions:
1. When the victim was tied elbow to elbow, his body with many
wounds and his head cut off, treachery may be considered, though
no witnesses saw the killing. (U.S. vs. Santos, 1 Phil. 222, 224-225)
2. The killing of a child is murder qualified by treachery, even if the
manner of attack was not shown. (People vs. Laggui, C.A., 34 O.G.
1708)
3. The Supreme Court in People vs. Retubado, No. L-58585, 162
SCRA 276, 286: Treachery must be appreciated in the killing of a
child even if the manner of attack is not shown. It exists in the
commission of the crime when an adult person illegally attacks a
child of tender years and causes his death. (Citing People vs.
Valerio, Jr., L-4116, Feb. 25,
1982, 112 SCRA 231)
The mode of attack must be consciously adopted.

This means that:
(1) The accused must make some preparation to kill the deceased in such
a manner as to insure the execution of the crime or to make it
impossible or hard for the person attacked to defend himself or
retaliate (People vs. Tumaob,
83 Phil. 738, 742; People vs. Saez, No. L-15776, March 29,
1961, 1 SCRA 937, 944; People vs. Iligan, G.R. No. 75369, Nov. 26, 1990,
191 SCRA 643, 653); or
(2) The mode of attack must be thought of by the offender, and must not spring
from the unexpected turn of events. (People vs. Dauz, C.A., 40 O.G.,
Sup. 11,107) The mode of attack could not have been thought of when
the decision to shoot the deceased was sudden, in view of the latter's
flight, and the relative positions of the victim and the killer were entirely
accidental. (People vs. Abalos, 84 Phil. 771, 773)
422
In the following cases, it was held that there was treachery:
1) The act of shooting the victim at a distance, without the least expectation
on his part that he would be assaulted, is characterized by treachery. The
assailant deliberately employed a mode of execution which tended
directly and specially to insure the consummation of the killing without
any risk to himself arising from the defense which the victim could have
made. (People vs. Tamani, Nos. L-22160-61, Jan. 21, 1974, 55 SCRA 153,
175)
2) The killings were attended with the aggravating circumstance of
treachery because the accused made a deliberate, surprise attack on the
victims. They perpetrated the killings in such a manner that there was no
risk to themselves arising from any defense which the victims might have
made. (People vs. Mori, Nos. L-23511-12, Jan. 31, 1974, 55 SCRA 382,
403-404)
3) The circumstances surrounding the killing of the deceased show
treachery. His hands were raised and he was pleading for mercy with
one of the assailants when another struck him on the neck with a bolo.
The role of the third assailant of weakening the defense, by disabling the
son of the deceased, was part and parcel of the means of execution
deliberately resorted to by the assailants to insure the assassination of
the deceased without any risk to themselves. (People vs. Ricohermoso,
Nos. L-30527-28, March 29,1974,
56 SCRA 431,437)
423
Treachery Par. 16
4) The assailant, in strategically placing himself in a forested area near the

highway and firing at the unsuspecting victim at a distance of eight
meters, employed a mode of execution that insured the consummation of
the killing without any risk arising from any defense that the victim
could have made. (People vs. Zapatero, No. L-31960, Aug. 15, 1974, 58
SCRA 450, 459)
5) In a sense, there was treachery because the victim, a woman, was first
reduced to helplessness before she was shot. (People vs. Clementer, No.
L-33490, Aug. 30, 1974,
58 SCRA 742, 749)
6) The victim was shot while he was gathering tuba on top of a coconut tree.
He was unarmed and defenseless. He was not expecting to be assaulted.
He did not give any immediate provocation. The deliberate, surprise
attack shows that Sangalang and his companions employed a mode of
execution which insured the killing without any risk to them arising from
any defense which the victim could have made. (People vs. Sangalang,
No. L-32914, Aug. 30, 1974, 58 SCRA 737, 741)
7) It was treacherous to shoot Cayago at night, while he was urinating on
the porch and when he did not expect at all that his enemy, Manangan,
was only four meters away aiming a carbine at him. It was an
ambuscade. Manangan resorted to a mode of execution that insured the
consummation of the killing without risk to himself arising from any
defense which the victim could have made. (People vs. Manangan, No. L-
32733, Sept. 11, 1974, 59 SCRA 31, 37)
8) There is treachery where the victim was tied and gagged before being
stabbed. Undisputed facts show that Henry Chua's hands were tied and
his mouth was gagged with a flannel cloth before he was stabbed twice
with an icepick and buried in a shallow grave near a creek. These facts
portray well that the tied hands of the victim rendered him defenseless
and helpless thereby allowing the accused to commit the crime without
risk at all to their person. (People vs. Ong, No. L-34497, Jan. 30, 1975, 62
SCRA 174, 211)
425
9) There was treachery because the five accused suddenly intercepted the
victim while he was on his way to the house of his cousin. The
appellants resorted to a mode of attack which insured the
consummation of the crime without any risk to themselves. The victim
was unarmed and he had no time to defend himself in view of the
Treachery Par. 16
suddenness of the assault and the fact that he was drunk at the time.
(People vs. Pajenado, No. L-26458, Jan. 30, 1976, 69 SCRA 172, 179-
180)
10) The attack on the victim was deliberate, sudden and unexpected and
from behind. Most of the wounds sustained by the victim and which
were fatal were found on his back. All of these are indicative of the fact
that the accused employed means and methods which tended directly
and especially to insure the execution of the offense without risk to the
offenders arising from the defense which the offended party might
have made. (People vs. Palencia, No. L-38957, April 30,1976, 71 SCRA
679, 689)
11) The victim was clearly not in a position to defend himself at the time of
the attack. He was then on top of a coconut tree. His assailant was on
the ground aiming and firing at him much as if he were a sitting duck.
There was, in other words, the employment of means or methods or
manner of execution which insured the attacker's safety from any
defensive or retaliatory act on the part of the victim, who was perched
on top of the coconut tree quite helpless.
(People vs. Toribio, G.R. No. 88098, June 26, 1991, 198 SCRA 529, 540)
12) Treachery was correctly appreciated. The accused, armed with a gun,
riding tandem on a motorcycle, suddenly and without warning shot the
victim in the back as the motorcycle sped by. The victim was then
walking along a road, unsuspecting and unarmed. The motorcycle then
turned back to where the victim lay wounded, and the accused fired at
him once more, again hitting him in the back. The victim had no
effective opportunity to defend himself and to strike back at the
assassin. (People vs. Clamor, G.R. No. 82708, July 1, 1991, 198 SCRA
642,
654-655)
13) Treachery is attendant. The accused, after having made two steps
behind the victim, suddenly and unexpectedly, with the use of a bolo,
hacked the deceased at his back causing a deep wound and fracture of
the 5th rib. When the victim faced the accused, he was again hacked at
the forehead. (People vs. Lubreo, G.R. No. 74146, Aug. 2,1991, 200
SCRA 11, 29)
14) The deceased was stabbed without warning. So sudden and
unanticipated was the attack that the victim was given no chance to
defend himself. Then the accused, although apparently acting without
prior agreement, also instantly and all together attacked him. Even if
their aforesaid acts were independently performed on their individual
initiatives, such concerted action ensured the commission of the crime
without risk to them arising from any defense or retaliation that the
425
Par. 16 Treachery
victim might have resorted to. Treachery was correctly appreciated
against all the accused. (People vs. Lacao, Sr., G.R. No. 95320, Sept.
4,1991,201 SCRA 317, 330)
When treachery is not present.

1) There was no treachery. The attack was perpetrated in a frontal
encounter, shown by the location of the wounds on the front part
of the victim's body. There were no wounds on the back. The
assailants did not make any deliberate, surprise attack on the
victim. They did not consciously adopt a treacherous mode of
attack. The attack was preceded by an altercation and on the spur
of the moment. (People vs. Ybanez, Jr., No. L-30421, March 28,
1974, 56 SCRA 210, 217)
2) The trial court correctly held that there was no treachery. The
initial assault on the victim was not made in a sudden and
unexpected manner. The malefactors gave him an ominous
warning of their presence and heralded their entrance into his
house by firing two gunshots at the ground. They first mauled him
presumably in a frontal encounter.
(People vs. Manzano, Nos. L-33643-44, July 31, 1974, 58
SCRA 250, 260)
3) The accused and his companions did not camouflage their hostile
intentions. They announced their presence at the scene of the
crime with shouts and gunshots. That mode of attack negated the
existence of treachery since the element of surprise, which marks
the presence of treachery, was absent. (People vs. Cunanan, No.
L-30103, Jan. 20, 1977, 75 SCRA 15, 23)
When treachery cannot be considered.

Treachery cannot be appreciated where there is nothing in the record to
show that the accused had pondered upon the mode or method to insure the
killing of the deceased or remove or diminish any risk to himself that might
arise from the defense that the deceased might make, as when his decision to
shoot the victim is sudden, brought about by a stinging provocation from the
latter. (People vs. Macaso, No. L-30489, June 30,1975, 64 SCRA 659, 666-667)
In the following cases, it was held that there was treachery:
"Inasmuch as Refuerzo was unarmed and utterly defenseless, he tried to
escape through the window. Quirino Ramolete shot him in that situation.
Refuerzo fell into the batalan with three serious gunshot wounds of entry on
his back. Treachery (alevosia) was manifest in that manner of assault because
it insured the killing without any risk to the assailant." (People vs. Ramolete,
et al., 56
426
Treachery Par. 16
SCRA 66)
"When the victim saw appellant hacking her sister, she ran out of the
house and cried for help. Appellant chased her and, upon overtaking her,
struck her on the head." (People vs. Cruz, 109 Phil. 288)
Note: Did the accused consciously adopt that method of shooting the
deceased as the latter "tried to escape through the window"
and of striking the victim on the head while chasing her? It
happened so suddenly that he could not have thought of that
manner of assault.
When there is no evidence that the accused had, prior to the moment of
the killing, resolved to commit the crime, or there is no proof that the death of
the victim was the result of meditation, calculation or reflection, treachery
cannot be considered. (U.S. vs. Balagtas, 19 Phil. 164)
If the decision to kill was sudden, there is no treachery, even if the
position of the victim was vulnerable, because it was not
deliberately sought by the accused, but was purely accidental. (People vs.
Cadag, et al., G.R. No. L-13830, May 31, 1961)
The reason for those rulings is that the law itself says: "There is
treachery when the culprit employed means, methods or forms of execution
which tend directly and specially to insure the execution of the crime, without
risk to himself." Hence, the mere fact that the attack was sudden and
unexpected does not show treachery, unless there is evidence that such form of
attack was purposely adopted by the accused. There must be evidence showing
that the accused re-
flected on the means, methods and forms of killing the victim. (People vs.
Tumaob, supra)
The characteristic and unmistakable manifestation of treachery is the

deliberate, sudden and unexpected attack of the victim from behind, without
any warning and without giving him an opportunity to defend himself or repel
the initial assault.
But mere suddenness of the attack is not enough to constitute treachery.
Such method or form of attack must be deliberately chosen by the accused.
(People vs. Macalisang, G.R. No. L-24546, February 22,1968, 22 SCRA 699,
704)
To sustain a finding of treachery, the means, method or form of attack
must be shown to have been deliberately adopted by the appellant. (People vs.
Caldito, G.R. Nos. 78432-33, Feb. 9,1990,182 SCRA 66, 77, citing People vs.
Manalo, 148 SCRA 98, 108)
That the mode of attack was consciously adopted may be inferred from the
circumstances.
427
Par. 16 Treachery
The aggravating circumstance of treachery is established where the
evidence showed that one of the accused approached the victim from behind,
encircling his arm in a tight grip around the victim's neck while his co-accused
held the victim's two hands, and as the victim was thus rendered helpless and
unable to defend himself, both the former and a third co-accused stabbed the
victim with the scissor blades, inflicting upon the victim at least four serious
stab wounds, any one of which could have caused his death. (People vs. Lunar,
No.
L-15579, May 29, 1972, 45 SCRA 119, 140)
Treachery attended the killing where the assailants hid behind a pile of
logs under cover of darkness and the victim was approached from behind
and shot as he turned around. (People vs. Jaravata, No.
L-22029, August 15, 1967, 20 SCRA 1014, 1020)
By their acts of showering the house with bullets, executed in the
darkness of the night, the offenders employed means, methods and forms in
the execution of the crime which tended directly to insure the execution of
their criminal design without risk to themselves arising from the defense
which the occupants of the house might make. (People vs. Elizaga, No. L-
23202, April 30,1968,23 SCRA 449,
463)
If the accused was well hidden behind a tree when he shot the victim
who, unarmed and unaware, had no way of defending himself, the accused
deliberately employed means, methods or forms to insure the execution of the
crime, without risk to himself. (People vs. Guevarra, G.R. No. L-24371, April
16, 1968, 23 SCRA 58, 72)
In the case of People vs. Dadis, G.R. No. L-21270, Nov. 22,
1966, 18 SCRA 699, 700, 701-702, the defendant also hid behind a tree and
shot at the victim while the latter was running away and was thus without
means of defending himself, but treachery was not appreciated because the
defendant did not purposely take advantage of the circumstance to kill the
victim without risk to himself. He did so because he was scared, believing that
the deceased was armed with a gun.
Treachery attended. Three men, armed with a knife, crept up in the dark
against a defenseless and unsuspecting victim who was answering a call of
nature. When two of them pinioned the victim's arms so that their companion
could stab him repeatedly and with impunity, they thereby employed means
which assured the execution of the crime without risk to themselves arising
from the defense that their victim might have made. (People vs. Hernandez,
G.R. No. 90641, Feb. 27, 1990, 182 SCRA 794, 799)
Treachery is present. The numerous stab wounds, some of which were
inflicted at the back of the victim, show that the attack was sudden and brutal.
The suddenness of the attack deprived the victim, a woman, unarmed and
428
Treachery Par. 16
alone, the opportunity to run or fight back. The assailant, a strong young man,
did not even suffer any injuries except for the small wound on his finger
inflicted by a bite. Obviously, apart from using her teeth, the victim could not
put up any defense. (People vs. Badilla, G.R. No. 69317, May 21, 1990, 185
SCRA 554, 570)
Where the meeting between the accused and the victim is

casual and the attack impulsively done, there is no
treachery.
Facts: Upon seeing the accused, the deceased started to run, whereupon
the accused whistled at him. As the deceased ignored the call and continued to
run away, the accused got off from his bicycle and, from a distance of some
fifty meters, fired a shot at the deceased who was fatally hit. The meeting of
the two persons was casual. The accused fired at his victim impulsively,
because the latter ignored the call of the accused.
Held: Where the meeting between the accused and the victim was casual
and the attack was done impulsively, there is no treachery even if the attack
was sudden and unexpected and while the victim was running away with his
back towards the accused. (People vs.
Calinawan, 83 Phil. 647, 648)
The reason for this ruling is that the accused could not have made
preparation for the attack, the meeting between him and the deceased being
casual, and the means, method and form of attack could not have been thought
of by the accused, because the attack was impulsively done.
In another case, the victim was sent to the store to buy some beer. It,
therefore, just so happened that he was sent on an errand at that particular
time to that particular place; otherwise, he would have remained at home.
Nobody knew beforehand that he would go to the store. Not even the appellant
nor his deceased brother could have expected to meet the victim there at that
specific moment. Nor could appellant have foreseen that the victim would be
carrying bottles of beer at the moment that he would attack the latter. The
meeting of the victim and his assailants was casual. Treachery did not attend.
(People vs. Diaz, No. L-75433, Nov. 9, 1988, 167 SCRA 239, 246)
Alevosia cannot be appreciated. The manner in which the aggression
was made or how the act which resulted in the death of the victim began and
developed was not shown. It would appear, too, that the accused had no
opportunity to plan the way, method, or means with which to execute the
felony, as the meeting between the accused and the deceased was accidental
since there is no evidence that the accused knew beforehand that the deceased
would be passing by the warehouse where they were working at that
particular time.
(People vs. Bacho, G.R. No. 66645, March 29, 1989, 171 SCRA 458,
429
Par. 16 Treachery
465,466)
Another reason why treachery cannot be considered is that the meeting
of the victim and the accused was only accidental. (People
vs. Velaga, Jr., G.R. No. 87202, July 23, 1991, 199 SCRA 518, 523)
Attacks showing intention to eliminate risk.

(a) Victim asleep.
Treachery attends where the victim was stabbed while he
was asleep. (People vs. Caringal, G.R. No. 75368, Aug. 11,1989,176
SCRA 404,419; People vs. Nolasco, No. L-55483, July 28, 1988, 163
SCRA 623, 629; People vs.
Trinidad, No. L-38930, June 28,1988,162 SCRA 714, 725; People
vs. Reunir, No. L-73605, Jan. 29,1988, 157 SCRA
686,693; People vs. Andres, No. L-75355, Oct. 29,1987,155 SCRA
290, 300; People vs. Perante, Jr., Nos. L-63709-10,
July 16, 1986, 143 SCRA 56, 60; People vs. Miranda, 90 Phil. 91,
96; People vs. Dequina, 60 Phil. 279, 286)
(b) Victim half-awake or just awakened.

Treachery characterized the crime. Even if the deceased was
already awake when the aggression commenced, and even if there
was light, the victim was still down on his back, still drowsy, and
unarmed. He was unaware of the defendant's intention. The blows
were delivered all of a sudden and without warning. (People vs.
Yadaon, 82 Phil. 160, 163)
Treachery attends where the victim had just awakened when
attacked, because he might still be dazed and unprepared for the
attack and would not be in a position to offer any risk or danger of
retaliation to the attacker. (People vs. Perante, Jr., supra; People
vs. Atencio, No. L22518, Jan. 17, 1968, 22 SCRA 88, 102; People vs.
Avila, 92 Phil. 805, 809)
(c) Victim grappling or being held.
Treachery is present where the assailant stabbed the victim
while the latter was grappling with another, thus rendering him
practically helpless and unable to put up
any defense. (People vs. Lingatong, G.R. No. 34019, Jan. 29, 1990,
181 SCRA 424, 430)
430
Treachery Par. 16
There is treachery where the victim was stabbed in a defenseless

situation, as when he was being held by the others while he was being stabbed,
as the accomplishment of the accused's purpose was ensured without risk to
him from any defense the victim may offer. (People vs. Condemena, G.R. No.
L-22426, May 29, 1968, 23 SCRA 910; People vs. Lunar, G.R. No. L-15579,
May 29, 1972, 45 SCRA 119) Here, the accused-appellant stabbed the victim
on the chest while his companions held both of the victim's arms. (People vs.
Montejo, No. L-68857, Nov. 21,
1988, 167 SCRA 506, 515)
Attacked from behind.
(1) With a firearm.

Treachery attended the crime, the accused having shot the victim
from behind without warning. (People vs. Acosta, G.R. No. 70153, July
2,1990;
People vs. Juanga, G.R. No. 83903, Aug. 30, 1990, 189 SCRA 226,233;
People vs. Marmita, Jr., G.R. No. 75618, Dec. 29,1989, 180 SCRA 723,
731)
Treachery qualified the crime because, although the victim was
forewarned of his impending death, he was shot in the back while he
was entirely defenseless and the killers were under no risk whatsoever
from any retaliation the victim might make. (People vs. Carmina, G.R.
No. 81404, Jan. 28, 1991, 193 SCRA
429, 435)
The shooting of Atty. Norberto Maramba was treacherous. The
accused suddenly and without warning shot him when the latter turned
his back towards the accused and returned to his table to eat. Atty.
Maramba was fatally hit on the back of his head and fell to the cement
floor. Atty. Maramba did not sense any danger that he would be shot by
the accused considering that he and the accused knew each other
personally and that there was no previous grudge or misunderstanding
between them. (People vs. LAC, Nos. L-66939-41, Jan. 10, 1987, 147
SCRA 219, 230)
433
(2) With a bladed weapon.

Par. 16 Treachery
There was treachery, as the stabbing was from behind, done in a
sudden and unexpected manner while the deceased was sitting and his
head down on his hands. (People vs. Delgado, G.R. No. 79672, Feb. 15,
1990, 182 SCRA 343, 351)
Treachery was duly and sufficiently proven. The victim was
suddenly and without warning stabbed at the back of his nape by the
assailant from behind with a double-bladed knife. (People vs. Melgar,
No. L-75268, Jan. 29, 1988, 157 SCRA 718, 727)
(3) Other modes of armed attack.
Treachery in the commission of the crime was correctly

appreciated. The victim was suddenly stabbed by the assailant without
any warning. Although he was armed with a gun, he was never given an
opportunity to ward off the assault due to its suddenness. (People vs. De
Mesa, G.R. No. 87216, July 28, 1990, 188 SCRA 48, 55)
Treachery attended where several accused took turns in stabbing
the victim who was caught by surprise and did not have time to defend
himself.
(People vs. Dollantes, No. L-70639, June 30, 1987, 151 SCRA 592, 607)
There was treachery because at the time of the attack, the victim
was not in a position to defend himself. After having been maltreated,
then stabbed, and while in flight, he was chased as though he was a
wounded quarry and in that defenseless state was shot from behind by
the assailant. (People vs. Ferrera, No. L-66965, June 18, 1987, 151 SCRA
113, 139)
There was treachery in the commission of the crime where the
victim was shot to death while he was lying face down on the floor,
without any warning and thus was not able to defend himself at all.
(People vs. Pecato, No. L-41008, June 18,1987,151 SCRA 14,
28)
Art. 14
Par. 16
Two policemen reacted to assert their authority in

protecting and covering civilians from the indiscriminate
firing by the accused. Accused instead, suddenly and without
warning, successively shot them, knowing fully well that they
were peace officers. Although both were armed with their
service guns, they were unable to offer resistance and put up
a defense due to the suddenness and close succession of the
shots. Treachery attended the commission of the crimes.
432
Treachery
(People vs. IAC, Nos. L-66939-41, Jan. 10, 1987, 147 SCRA
219, 230)
Attacking the victim suddenly and with a firearm.

(People vs. Rendora, G.R. No. L-14356, Sept. 30, 1959)
Calling the victim to come down from the house and
subjecting him to a volley of shots, causing his death. (People
vs. Mukung, G.R. No. L-2138, March 22, 1950)
Shooting unsuspecting victim who was hit in the
abdomen while he was wheeling around to face the assailant.
(People vs. Noble, 77 Phil. 93)
In all the above cases, the offenders attacked the
victims while the latter were not in a position to make a
defense.
From the circumstances of said cases, the Supreme
Court believed that the offenders purposely adopted certain
means, methods or forms of attack to insure the execution of
the crime without risk to themselves.
Requisites of treachery:
(1) That at the time of the attack, the victim was not in a position to
defend himself; and
(2) That the offender consciously adopted the particular means,
method or form of attack employed by him.
To constitute treachery, two conditions must be present, to wit: (1) the
employment of means of execution that gave the person attacked no
opportunity to defend himself or to retaliate; and (2) the means of execution
were deliberately or consciously adopted. (People vs. Mabuhay, G.R. No.
87018, May 24, 1990, 185 SCRA 675, 680)
In order for treachery to exist, two conditions must concur, namely: (1)
the employment of means, methods or manner of execu-
tion which would insure the offender's safety from any defense or retaliatory
act on the part of the offended party; and (2) such means, method or manner
of execution was deliberately or consciously chosen by the offender. (People vs.
Sabado, No. L-76952, Dec. 22, 1988, 168 SCRA 681, 690; People vs. Rellon, No.
L-74051, Nov. 8, 1988, 167
SCRA 75, 77-78; People vs. Marciales, No. L-61961, Oct. 18, 1988,
166 SCRA 436,449; People vs. Estillore, No. L-68459, March 4,1986, 141
SCRA 456, 460)
433
Par. 16 Treachery
The victim was not in a position to defend himself.
Treachery is properly appreciated when the victims were made to lie
face down, their hands tied at the back before they were killed (People vs.
Saquing, No. L-27903, Dec. 26,1969,30 SCRA 834,845), or when the victim was
shot from behind while dancing (People vs. Berzuela, G.R. No.
132078, Sept. 25, 2000), or when the victim was shot while blindfolded (People
vs. Jakosalem, G.R. No. 130506, Feb. 28. 2002).
Treachery attended the killing. The victim was totally defenseless. He
was caught by surprise when the assailants, whom he considered his friends,
suddenly attacked him. Without warning, he was hit in the head, then stabbed
in the back. Thus disabled, he was stabbed in the chest. And even as he ran for
his life, he was pursued and stabbed some more when he stumbled. He never
had a chance to save his life. (People vs. Espinosa, G.R. No. 72883, Dec. 20,
1989, 180 SCRA 393, 400)
The violent death of the victim was accompanied by treachery where,
although there were no eyewitnesses to the actual assault, he was apparently
beaten to death while his hands and feet were tied with a rope. (People vs.
Gapasin, No. L-52017, Oct. 27, 1986, 145
SCRA 178, 194)
Treachery was also present where the assailants made a deliberate,
sudden and surprise attack from behind while the victim sat defenseless in the
driver's seat of his jeep. When he stopped his jeep, one of the assailants placed
a piece of wire around his neck and
Art. 14
Par. 16
strangled him while the other held him. At that precise moment of the attack,
the victim was not in a position to defend himself and the accused deliberately
and consciously adopted the particular method or form of attack which was
strangulation from behind by one and
holding him by the other beside him. (People vs. Masilang, No. L64699, July
11, 1986, 142 SCRA 673, 682)
There is treachery when the offenders made a deliberate surprise or unexpected

attack on the victim.
There was treachery because the brothers made a deliberate surprise or
unexpected assault on Tadia. They literally ambushed him. They waited for
him on the cliff, a high ground which rendered it difficult for him to flee or
maneuver in his defense. Tadia was shot sidewise while he was ascending the
hill or cliff burdened by his food basket. (People vs. Diaz, No. L-24002, Jan.
21, 1974, 55 SCRA 178, 186)
434
Treachery
The accused waited patiently and deliberately at the farmhouse of the
deceased, met her on the road when he saw her coming riding on a sled,
waited by the roadside until the victim passed by and then, without warning
and without giving the victim a chance to escape, made a sudden and
unexpected attack. The unarmed, fifty-six-yearold woman was absolutely
helpless and unable to defend herself from the overpowering strength of the
accused when he stabbed her twice with a combat bolo. The victim had no
opportunity to defend herself
or repel the initial assault. (People vs. Bayocot, G.R. No. 55285, June 28, 1989,
174 SCRA 285, 293)
There is treachery where everyone of the three victims was completely
helpless and defenseless when shot and killed by the accused with no risk to
themselves. The first was completely taken by surprise when he was shot in the
face. The second was lying down when he was shot in the head. The third was
seated when he was shot in the head and shoulders. None of the three victims
had a chance to resist. (People vs. Mufioz, G.R. Nos. 38969-70, Feb. 9, 1989,
170
SCRA 107, 120)
Treachery was attendant where the victim was stabbed suddenly and
he was totally unprepared for the unexpected attack as he was dancing at the
precise time of the incident. He was given absolutely no chance to defend
himself. (People vs. Acaya, No. L-72998, July 29, 1988,163 SCRA 768, 773)
There was alevosia where the unarmed and unsuspecting victim was
ambushed in the dark, without any risk to his assailants. (People vs. Egaras,
No. L-33357, July 29, 1988, 163 SCRA 692, 696, citing earlier cases)
The victim was bringing food items for a noche buena when he was
suddenly attacked by two assailants, one armed with a spear and the other
with a bolo. The attack was so sudden that the victim had no opportunity to
defend himself or to inflict retaliatory blows on the assailants. He just fell
down after the spearing and was then hacked with the bolo. The killing was
characterized by treachery. (People vs. Bravante, No. L-73804, May 29, 1987,
150 SCRA 569,
576)
There is no treachery when the victim was already defending himself when he
was attacked by the accused.
Where the deceased was suddenly attacked, but he was able to retreat to
avoid being hit by the hacking blows and was hit only when he was already in
the act of defending himself against the attack of the accused, there is no
treachery. (People vs. Diva, No. L-22946,
April 29, 1968, 23 SCRA 332, 340)
435
Par. 16 Treachery
Likewise, treachery is not present where the accused and the victim
grappled with each other. (People vs. Butler, No. L-50276, Jan. 27, 1983, 120
SCRA 281, 306)
Does the fact that advantage was taken of relative confusion, so that the act and
identity of the offender would not be detected, and so that his escape would be
facilitated adequately establish treachery?
The Solicitor General in his brief recommends that defendant be found
guilty only of homicide, stating that, in his view, treachery is not borne out by
the evidence. Our consideration, however, of the facts shown in the record,
particularly Rolando Banhao's testimony, convinces us that treachery has
been adequately established. As recounted by said witness, defendant stabbed
the deceased at the time when, on account of the shower, people were going
out of the dance hall to seek for cover. Advantage was therefore taken by
defendant of the relative confusion created by the shower on the crowd, so that
his act and identity would not be detected by the people in the dance hall, and
so that his escape would be facilitated. (People vs. Tilos,
G.R. No. L-28596, February 21, 1968, 22 SCRA 657, 660-661)
436
Treachery Par. 16
The reason for the ruling is not in accordance with the second requisite
of treachery, and is completely alien to the definition of the aggravating
circumstance.
Treachery does not connote the element of surprise alone.

Counsel contends that since the deceased had been threatened since the
day before the shooting, he was not caught by surprise at all. But treachery
does not connote the element of surprise alone, but exists when the offender
employs means which tend directly and specially to insure the execution of the
offense, without risk to himself arising from the defense which the offended
party might make. (Art. 14, par. 16, Revised Penal Code) When appellant
accosted his victim, who could have had no idea as to just how the threat to
him would be carried out, and without warning, shot him five times, nothing
could possibly have been done by the latter in his own defense. (People vs.
Casalme, No. L-18033, July 26, 1966, 17 SCRA 717, 720)
The appellant followed the serenaders as they walked, made no
indication that he would shoot, and then suddenly fired from behind, two
shots in rapid succession from a distance of about five meters. Under the
circumstances, clearly there was treachery. (People vs.
Pantoja, No. L-18793, October 11, 1968, 26 SCRA 468, 471)
Mere sudden and unexpected attack does not necessarily

give rise to treachery.
It does not always follow that because the attack is sudden and
unexpected it is tainted with treachery. Indeed, it could have been done on
impulse, as a reaction to an actual or imagined provocation offered by the
victim. (People vs. Sabanal, G.R. Nos. 73486-87, April
18, 1989, 172 SCRA 430, 434, citing People vs. Malazzab, 160 SCRA
123; People vs. Aninon, 158 SCRA 701; People vs. Macaso, 64 SCRA
659; People vs. Ardiza, 55 SCRA 245; People vs. Macalisang, 22 SCRA 699;
and People vs. Tumaob, 83 Phil. 738)
When the accused gave the deceased a chance to prepare,

there was no treachery.
When the accused challenged the deceased to a gunfight before the
shooting, the attack was not treacherous even if the shooting was sudden and
the deceased was not prepared because it gave the deceased a chance to
prepare for the impending attack. (People vs. Visagar, 93 Phil. 319, 326-327)
437
Par. 16 Treachery
No treachery where the attack is preceded by a warning.

And when the attack was frank, made face to face, and the accused first
asked "What did you say?" before starting the aggression, there is no
treachery because that question was already a warning to the offended party
of the hostile attitude of the accused. (People vs. Luna, 76 Phil. 101, 104)
Calling attention of victim not necessarily a warning.

Treachery in the commission of the crime is clearly established in this
case: the assailant fired two successive shots at the defenseless victim, a fiscal,
while the latter was still seated in his jeep, hitting him at the neck and lumbar
region. The fact that the assailant called out, "Fiscal" before shooting the
victim does not negate the presence of treachery. The assailant being a hired
killer, he wanted to insure that he was shooting the correct person. When the
victim turned his face to find out who was calling him, the assailants fired
immediately, rendering no opportunity for the victim to defend himself.
(People vs. Magdueno, No. L-68699, Sept. 22, 1986, 144 SCRA 210, 217-218)
No treachery where shooting is preceded by heated

discussion.
Facts: After a brief exchange of strong language, the accused pulled his
revolver and fired at the deceased three times successively,
while the latter was absolutely defenseless, as he had no weapon of any kind
whatsoever in his hands at that time.
Held: Since the shooting was preceded by a heated discussion between
the two, it must have placed the deceased on his guard, and the alleged
treachery cannot be legally considered. (People vs. Gonzales, 76 Phil. 473, 479)
There is no treachery where the commission of the crime was preceded
shortly before by a boxing incident and the victim and his companions had all
the opportunity to insure their safety, immediately before the attack of the
defendants. (People vs. Gupo, G.R. No. 75814, Sept. 24, 1990, 190 SCRA 7, 19)
There is no treachery where the assault upon the deceased was preceded
by a heated exchange of words between the accused and the deceased. It
cannot be said that the deceased was caught completely by surprise when the
accused took up arms against him. (People vs. Rillorta, G.R. No. 57415, Dec.
15, 1989, 180 SCRA 102,
107)
438
Treachery Par. 16
Where the victim had provoked the assailant by hitting not only him,
but also his wife, he should have been sufficiently forwarned that reprisal
might be in the offing. The element of a sudden unprovoked attack indicative
of treachery is therefore lacking. (People vs. Manlapaz, No. L-27259, Feb. 27,
1974, 55 SCRA 598, 604)
Killing unarmed victim whose hands are upraised is committed with treachery.
The accused pointed his rifle at the victim at a distance of six meters and
said, "Pardong, stand up, we are going to shoot you." The victim had his
hands upraised, pleading in a loud voice, "Do not kill me, investigate first
what was my fault." The accused shot the victim, mortally wounding him.
Held: The killing was committed with treachery. (People vs. Barba, G.R.
No. L-7136, Sept. 30, 1955)
Where the victim was shot when his hands were raised, to show that he
would not fight, or because of fright, or to try to ward off the shots that were
to come, he was clearly in a defenseless position. This circumstance constitutes
treachery. (People vs. Castro, G.R. Nos.
L-20555 and L-21449, June 30,1967, 20 SCRA 543, 547)
Treachery was present in this case. The victim was unarmed and had
raised his hands crying and pleading for his life when he was shot by the
assailants. Obviously, the stand taken by the victim posed no risk to the
assailants. (People vs. Jutie, G.R. No. 72975, March
31, 1989, 171 SCRA 586, 595, citing People vs. Lebumfacil, L-32910, March 28,
1980, 96 SCRA 573; People vs. Lasatin, L-5874, February 11, 1953, 92 Phil.
668)
Killing a woman asking for mercy is committed with treachery.

The accused shot Mrs. Howell while she was pleading for her
daughters: "Maawa na kayo. Huwag po."
Held: The killing was committed with treachery. (People vs. Dagundong,
G.R. No. L-10398, June 30,1960,108 Phil. 682, 684, 693)
There is treachery in killing a child.

Killing a child is characterized by treachery because the weakness of the
victim due to his tender age results in the absence of any danger to the
accused. (U.S. vs. Oro, 19 Phil. 548, 554)
439
Par. 16 Treachery
The killing of a one-year-old child, a six-year-old child, and a twelve-

year-old child is attended with treachery. The killing is murder even if the
manner of attack was not shown. The qualifying circumstance of treachery
exists in the commission of the crime of murder when an adult person illegally
attacks a child of tender years and causes his death. (People vs. Retubado,
G.R. No. 58585, June 20, 1988, 162 SCRA 276; People vs. Valerio, G.R. No. L-
4116, February 25, 1982, 112 SCRA 208; U.S. vs. Lansangan, 27 Phil. 474;
U.S. vs.
Baul, 39 Phil. 846; People vs. Ganohon, G.R. Nos. 74670-74, April 30, 1991,
196 SCRA 431, 446)
Intent to kill is not necessary in murder with treachery.

Thus, one who struck another with the fist from behind, the blow
landing on the back part of the head, causing the latter to fall backwards, his
head striking the asphalt pavement which caused death resulting from a
fracture of the skull, is guilty of murder although he did not intend to kill the
deceased. The Supreme Court of Spain has held that there is no
incompatibility, moral or legal, between alevosia and the mitigating
circumstance of not having intended to cause so great an injury. (People vs.
Cagoco, 58 Phil. 524, 530)
But intent to kill is necessary in murder committed by means of fire.
(U.S. vs. Burns, 41 Phil. 418, 432-433)
Treachery may exist even if the attack is face to face.

It is not necessary for treachery to be present that the attack must come
from behind the victim.
Treachery should be taken into account even if the deceased was face to
face with his assailant at the time the blow was delivered, where it appears
that the attack was not preceded by a dispute and the offended party was
unable to prepare himself for his defense. (U.S.
vs. Cornejo, 28 Phil. 457, 461)
The attack was sudden and unexpected to the point of incapacitating
George Ott to repel or escape from it. The offender adopted a method which
tended directly and especially to insure the accomplishment of his purpose
without risk to himself arising from any defense which the offended party
might make. True, the victim and the accused were face to face when the
attack commenced, the first shot, according to all indications, having hit the
victim in the abdomen. But it is also true that he had just wheeled around to
440
Treachery Par. 16
see who had spoken to him when the defendant opened fire. (People vs. Noble,
77 Phil. 93)
Treachery is present although the shooting was frontal, as when the

attack was so sudden and unexpected that the victim was not in a position to
offer an effective defense. Thus, where the victim approached the driver of a
pickup and, as he approached the pickup, the victim was met with gunfire
which was followed by two more successive shots, there was treachery. (People
vs. Cuadra, No. L-27973, Oct. 23, 1978, 85 SCRA 576, 595)
Treachery attended where the victim was completely taken by surprise
and shot, where he was seated peacefully eating with his family. That he was
shot face to face did not make the attack any less treacherous as he was totally
taken aback and rendered completely defenseless when he was shot. (People
vs. Liston, G.R. No. 63396, Nov. 15, 1989, 179 SCRA 415, 421)
Treachery attends although the attack is frontal where the victim was
completely helpless, as when both his hands were held by the attackers
numbering five ganging up on him. (People vs. Solares, G.R. No. 82363, May
5, 1989, 173 SCRA 203, 208)
Where before the victim was stabbed and hit several times with hollow
blocks on the head, his arms were twisted, rendering him helpless to defend
himself or repel the initial assault, the mode of attack was deliberately and
consciously resorted to insure the commission of the crime without risk to the
assailants arising from the defense that the victim might put up. (People vs.
Paras, No. L-61773, Jan. 31, 1987, 147 SCRA 594, 610)
Flashing the beam of a flashlight on the face of victim.

Where immediately prior to the stabbing, the accused flashed the beam
of his flashlight on the face of his victim, momentarily blinding the latter, the
attack, though frontal, was sudden and perpetrated in a manner tending
directly to insure its execution, free from any danger that the victim might
defend himself. (People vs. Pongol, C.A., 66 O.G. 5617)
Treachery must be proved by clear and convincing

evidence.
Treachery is not to be presumed or taken for granted from the mere
statement of a witness that "the attack was sudden." There must be a clear
showing from the narration of facts why the attack or assault is said to be
"sudden." The reason for this is that treachery, like any element of the crime,
441
Par. 16 Treachery
must be proved by clear and convincing evidence. (People vs. Santos, No. L-
32073, Oct. 23,1978, 85 SCRA 630, 639)
Treachery cannot be presumed; it must be proved by clear and
convincing evidence, or as conclusively as the killing, if such be the crime,
itself. (People vs. Tiozon, G.R. No. 89823, June 19, 1991, 198 SCRA 368, 387-
388, citing earlier cases)
Attack from behind is not always alevosia.

The mere fact that the attack was inflicted when the victim had his back
turned will not in itself constitute alevosia. It must appear that such mode of
attack was consciously adopted and the question of risk to the offender must
be taken into account. (People vs. Baldos,
C.A., 34 O.G. 1937)
The fact that the fatal wounds were found at the back of the deceased
does not, by itself, compel a finding of treachery. Such a finding must be based
on some positive proof and not merely by an inference drawn more or less
logically from hypothetical facts. The facts preceding the actual shooting must
be in evidence. (People vs. Ablao, G.R. No. 69184, March 26, 1990,183 SCRA
658, 668)
The mere fact that the victim had a stab wound at the back is not
indicative of alevosia, where the deceased had sustained two (2) other stab
wounds at the front, and the evidence clearly shows that the stab wound at the
back was the last to be inflicted. (People vs. Bacho, G.R. No. 66645, March 29,
1989, 171 SCRA 458, 466)
The fact that the injuries of the victim were inflicted from behind as the
latter was running away does not necessarily establish treachery where it does
not appear that the assailant purposely chose to employ such means of attack
so that there would be no risk
442
Treachery
Art. 14
Par. 16
to himself from any defense which the offended party might make. (People vs.
Besana, Jr., No. L-26194, May 19,1975, 64 SCRA 84, 88, citing People vs.
Tumaob, 83 Phil. 742)
Must treachery be present in the beginning of the assault?

It depends upon the circumstances of the case.
It must be shown that the treacherous acts were present and preceded
the commencement of the attack which caused the injury complained of. (U.S. vs.
Balagtas, 19 Phil. 164, 172)
Notwithstanding that the shooting was sudden and unexpected and
committed on a helpless victim, in the absence of a showing that such mode of
attack was adopted consciously and that the assailant knowingly intended to
ensure the accomplishment of his criminal purpose, and where the shooting
was only an aftermath of a mauling, kicking, and boxing incident, treachery
did not attend. It is an established rule that treachery must be present from
the commencement of the attack. (People vs. Tapeno, No. L-33573, Aug.
29,1988,164 SCRA 696, 703)
Even though in the inception of the aggression which ended in the death
of the deceased, treachery was not present, if there was a break in the
continuity of the aggression and at the time the fatal wound was inflicted on the
deceased he was defenseless, the circumstance of treachery must be taken into
account. (U.S. vs. Baluyot, 40 Phil. 385,
395)
Treachery need not exist in the beginning of the assault if the victim was
first seized and bound and then killed. (People vs. Canete, 44 Phil. 478, 483)
U.S. vs. Balagtas

(19 Phil. 164)
Facts: The accused knocked down the victim, striking him while
on the ground. Then, the accused threw him into the water, face
downward, while he was still alive in a helpless and defenseless
condition.
Held: The knocking down of the victim, striking him on the
ground, and throwing him into the water constituted one and the same
attack. One continuous attack cannot be broken up into two or more
443
Par. 16 Treachery
parts and made to constitute separate, distinct, and independent
attacks so that treachery may be injected therein.
Note: In this case, there was no treachery at the inception of the
attack.
Also, even if the deceased was shot while he was lying wounded on the
ground, it appearing that the firing of the shot was a mere
continuation of the assault in which the deceased was wounded, with no
appreciable time intervening between the delivery of the blows and the firing of
the shot, it cannot be said that the crime was attended by treachery. (People
vs. Peje, 99 Phil. 1052 [Unrep.])
If the wounding of the victim while lying on the ground was merely
incidental to the ensuing pursuit, not intended to ensure the safety of the
attackers themselves, there is no treachery. (People vs.
Clemente, No. L-23463, September 28, 1967, 21 SCRA 261, 270)
People vs. Canete

(44 Phil. 478)
Facts: The accused assaulted the deceased with a knife and, in the
course of the fight which ensued, inflicted a serious cut on his thigh.
Upon receiving the wound, the deceased turned and fled, and was
immediately pursued by the accused. After going a short distance, the
deceased fell to the ground face downwards; and before he could recover
his equipoise and resume his flight, the accused ran up and delivered a
fatal thrust with his knife in the back of the deceased.
Held: That as the assault was not characterized by alevosia in its
inception and the aggression was continuous until the consummation of
the deed, the offense constituted simple homicide and not murder.
Canete could not have consciously adopted that method of attack, that is,
stabbing the deceased in the back when the latter was in a helpless condition,
since the assault began face to face and it was only when the deceased turned
around and ran away that their relative positions changed. And as the
aggression was continuous, Canete had no time to prepare for, or even to
think of, that method of attack.
U.S. vs. Baluyot

(40 Phil. 385)
444
Treachery
Facts: The accused entered the office of the governor of Bataan
when the latter was sitting on a chair behind his desk. The accused
approached the desk and upon reaching a position directly in front of
the governor, spoke certain words. Upon discovering that the governor
was
Art. 14
Par. 16
unarmed, the accused drew his own weapon and fired. The bullet fired
entered in the frontal region of the right shoulder blade of the governor
and inflicted a wound of minor importance. The governor immediately
arose. He escaped in the direction to his left by way of the space between
the left corner of his desk and the wall nearby, leading into a corridor.
The accused meanwhile turned somewhat to his right and advanced
slightly in the direction taken by the governor who was running away.
The accused fired again at the governor, hitting the latter in the region of
the right shoulder blade and passing through the body, an inch or two
from the wound made by the first shot. The governor continued his flight
along the corridor and took refuge in a closet at the end of the corridor.
Once within, he shut the door and placed himself in a position to obstruct
the entrance of his pursuer, who vainly attempted to open the door. The
governor screamed for help. This time, the accused who was outside the
closet stopped for a moment and judging the position of the governor's
head from the direction of the sound emitted, fired his revolver in the
direction indicated. The bullet passed through the panel of the door and
struck the governor in the forward part of the head near and above the
temple. This wound was necessarily fatal.
Held: The entire assault from the beginning until the second shot
was fired must be considered continuous and that the second shot was
fired while the victim was endeavoring to flee to a place of safety.
Even supposing that alevosia had not been present in the beginning
of the assault, it would be necessary to find this element present from the
manner in which the crime was consummated.
In the closet with the door shut, it was impossible for the governor
to see what his assailant was doing or to make any defense whatever
against the shot directed through the panel of the door. It was as if the
victim had been bound or blind-folded, or had been treacherously
attacked from behind in a path obscured by the darkness of the night.
445
Par. 16 Treachery
When the second shot was fired, the deceased was fleeing away and
entirely defenseless; but since the entire assault from the beginning up to that
time was continuous and that the assault was begun without treachery, the
Supreme Court did not consider the second wound as having been inflicted
with treachery. Moreover, the second wound was not fatal, like the first
wound. It was the third wound in the head which caused the death of the
victim. The crime of murder was consummated with the infliction of the third
wound.
But before the third wound was inflicted by the accused, he had stopped
for sometime. This fact is deducible from the circumstances that the accused
attempted vainly to open the door of the closet; and that when he failed, he
judged the position of the head of the governor before firing his revolver.
Evidently, a certain period of time must have elapsed in doing all of these acts.
Because of that interruption, the assault was not continuous up to the moment
when the fatal blow was inflicted treacherously. During the period of
interruption, the accused was able to think and even to make preparation for a
method or form of attack that insured the execution of the crime without risk
to himself.
Summary of the rules.

(1) When the aggression is continuous, treachery must be present in
the beginning of the assault. (People vs. Canete, supra)
(2) When the assault was not continuous, in that there was an
interruption, it is sufficient that treachery was present at the
moment the fatal blow was given. (U.S. vs. Baluyot, supra)
In treachery, it makes no difference whether or not the

victim was the same person whom the accused intended
to kill.
As the appellant committed the act with intent to kill and with
treachery, the purely accidental circumstance that as a result of the shots, a
person other than the one intended was killed, does not modify the nature of
the crime nor lessen his criminal responsibility, and he is responsible for the
consequences of his acts. (People vs. Guevarra, No. L-24371, April 16, 1968, 23
SCRA 58, 72)
That another person, and not the victim, was the intended victim is not
incompatible with the existence of treachery. Treachery may be taken into
account even if the victim of the attack was not the person whom the accused
446
Treachery
intended to kill. (People vs. Trinidad, No. L-38930, June 28, 1988, 162 SCRA
714, 725)
Treachery, whenever present in the commission of a crime, should be
taken into account no matter whether the victim of the treacherous attack was
or was not the same person whom the accused intended to kill. (People vs.
Mabug-at, 51 Phil. 967, 970-971; People vs. Guillen, 85 Phil. 307, 318)
The reason for this rule is that when there is treachery, it is impossible
for either the intended victim or the actual victim to defend Art. 14
Par. 16
himself against the aggression. (People vs. Andaya, C.A., 40 O.G. Sup. 12,141)
When treachery is not to be considered as to the principal

by induction.
When it is not shown that the principal by induction directed or induced
the killer of the deceased to adopt the means or methods actually used by the
latter in accomplishing the murder, because the former left to the latter the
details as to how it was to be accomplished, treachery cannot be taken into
consideration as to the principal by induction. It shall aggravate the liability of
the actual killer only. (U.S. vs. Gamao, 23 Phil. 81, 96) The ruling is based on
Art. 62.
Treachery, abuse of superior strength, and means

employed to weaken the defense, distinguished.
Any one of these aggravating circumstances may facilitate the
In treachery, means, methods or forms of attack are employed by the
offender to make it impossible or hard for the offended party to put up any
sort of resistance. (People vs. Ducusin, 53 Phil. 280, 289-290; People vs.
Tumaob, 83 Phil. 738)
In abuse of superior strength, the offender does not employ means,
methods or forms of attack; he only takes advantage of his superior strength.
In means employed to weaken the defense, the offender, like in treachery,
employs means but the means employed only materially weakens the resisting
power of the offended party.
447
Par. 16 Treachery
When there is conspiracy, treachery is considered against
all the offenders.
Treachery should be considered against all persons participating or
cooperating in the perpetration of the crime, except when there is no
conspiracy among them. Hence, if there was no conspiracy even if two
accused helped each other in attacking the deceased, only the one who
inflicted the wound upon the deceased while the latter was struggling with the
other defendant, is to suffer the effect of the attendance of treachery. (People
vs. Carandang, 54 Phil. 503, 506) The ruling stated in the first sentence
should be subject to the provision of Art. 62, paragraph No. 4, that is,
treachery should be considered against "those persons only who had
knowledge" of the employment of treachery "at the time of the execution of
the act or their cooperation therein."
When there is conspiracy, treachery attends against all conspirators,
although only one did the actual stabbing of the victim. (People vs. Ong, No.
L-34497, Jan. 30, 1975, 62 SCRA 174, 211)
The mastermind should have knowledge of the

employment of treachery if he was not present when the
crime was committed.
The trial court refused to consider treachery even as a generic
aggravating circumstance against appellant, on the ground that he was not
present when the crime was actually committed, and left the means, modes or
methods of its commission to a great extent to the discretion of the others,
citing People vs. De Otero, 51 Phil. 201.
The citation is not in point. It refers to a case where the accused was
convicted as principal by inducement per se under paragraph 2 of Article 17 of
the Revised Penal Code, without proof of conspiracy with the other accused.
In the case at bar, however, there was conspiracy among the defendants, and
the rule is that every conspirator is responsible for the acts of the others in
furtherance of the conspiracy. Treachery — evident in the act of the gunman
in suddenly firing his revolver, preceded as it was by a false showing of
courtesy to the victim, thus insuring the execution of the crime without risk
from any defense or retaliation the victim might offer — should be
appreciated as a generic aggravating circumstance against the mastermind
even when he was not present when the crime was committed. (People vs.
Pareja, No. L-21937, Nov. 29, 1969, 30 SCRA 693, 715-716)
The ruling in this case should be subject to the provision of Art. 62,
paragraph No. 4.
448
Treachery
If the intervention of other persons did not directly and
especially insure the execution of the crime without risk to
the accused, there is no treachery.
Thus, even if the wife and sister of the accused held the deceased by his
shirt when the accused inflicted the bolo wounds which caused
449
Treachery Par. 16
his death, there is no treachery, because the body and hands of the deceased
were not deprived of liberty of action and, hence, there is still risk to the
person of the accused arising from the defense which
the victim might make. (People vs. Julipa, 69 Phil. 751, 753)
But if, of the four persons who were to rob a house, one grappled with
the watchman while the two opened fire and mortally wounded both
combatants, it was held that even though in the inception of the aggression, the
watchman carried a carbine and was at liberty to defend himself, it is a fact
that at the time the fatal wounds were inflicted, he was defenseless. His
freedom of movement was being restrained by one of the culprits when the
others fired at him. (People vs. Mobe, 81 Phil. 58, 62)
Under the circumstances, there was no risk to the aggressor arising from
any defense which the deceased might make.
Treachery, evident premeditation and use of superior

strength are absorbed in treason by killings.
Treachery, evident premeditation and use of superior strength are, by
their nature, inherent in the offense of treason. (People vs. Racaza, 82 Phil.
623, 637)
Treachery absorbs abuse of superior strength, aid of

armed men, by a band and means to weaken the defense.
Abuse of superior strength and employing means to weaken the defense
of the deceased by throwing sand to his face are absorbed in treachery.
(People vs. Siaotong, G.R. No. L-9242, March 29, 1957
[Unrep.])
When treachery is taken into account as a qualifying circumstance in
murder, it is improper to consider, in addition to that circumstance, the
generic aggravating circumstance of abuse of superior strength, since the
latter is necessarily included in the former. (U.S. vs. Estopia,
28 Phil. 97, 100; U.S. vs. Oro, 19 Phil. 548, 554-555; U.S. vs. Vitug,
17 Phil. 1, 20)
The aggravating circumstances of superior strength and by band are
absorbed in treachery. (People vs. Ampo-an, G.R. No. 75366, July 4, 1990,
187 SCRA 173, 189; People vs. Manzanares, G.R. No. 82696, Sept.
450
8,1989,177 SCRA 427,434; People vs. Molato, G.R. No. 66634, Feb. 27, 1989,
170 SCRA 640, 647; People vs. Renejane, Nos.
L-76954-55, Feb. 26, 1988, 158 SCRA 258, 269)
The killings were attended with the aggravating circumstances of
treachery, abuse of superiority, dwelling and band (cuadrilla). The qualifying
circumstance alleged in the information is treachery which absorbs abuse of
superior strength and cuadrilla. (People vs. Mori, Nos. L-23511-12, Jan. 31,
1974, 55 SCRA 382, 403; People vs.
Sangalang, No. L-32914, Aug. 30, 1974, 58 SCRA 737, 741)
The aggravating circumstances of superior strength and aid of armed
men, as well as nighttime, are included in the qualifying circumstance of
treachery. (People vs. Sespeiie, 102 Phil. 199, 210)
Nighttime and abuse of superior strength are inherent in treachery and
cannot be appreciated separately. (People vs. Bardon, No. L-60764, Sept.
19,1988,165 SCRA 416,426; People vs. Kintuan,
No. L-74100, Dec. 3, 1987,156 SCRA 195, 202)
Abuse of superiority and aid of armed men are absorbed in treachery.
(People vs. Ferrera, No. L-66965, June 18,1987,151 SCRA 113, 139)
Treachery absorbs nocturnity, abuse of superiority, band and aid of
armed men. While there may be instances where any of the other
circumstances may be treated independently of treachery, it is not so when
they form part of the treacherous mode of attack. (People vs. Sudoy, Oct. 10,
1974, 60 SCRA 174, 182)
Nighttime inherent in treachery.

The reason for this rule is that nighttime forms part of the peculiar
treacherous means and manner adopted to insure the execution of the crime.
(People vs. Pardo, 79 Phil. 568; People vs. Corpuz, 107 Phil. 44, 50)
Had it not been at night, the accused would not have been able to
approach the deceased without the latter's becoming aware of his presence
and guessing his intention. (People vs. Balagtas, 68 Phil. 675, 677) Hence,
nighttime is not a separate aggravating circumstance, whenever treachery is
already considered.
When nighttime is not absorbed in treachery.

There was treachery in the commission of the offense at bar.
Treachery Par. 16
451
Par. 16 Treachery
The victims' hands were tied at the time they were beaten. Since the treachery
rests upon an independent factual basis, the circumstance of nighttime is not
absorbed therein, but can be perceived distinctly therefrom. A special case
therefore is present to which the rule that nighttime is absorbed in treachery
does not apply. (See People vs. John Doe, G.R. No. L-2463, March 31, 1950; 2
Viada, Codigo Penal,
274-275; People vs. Berdida, No. L-20183, June 30, 1966, 17 SCRA
520, 529; People vs. Ong, No. L-34497, Jan. 30,1975, 62 SCRA 174, 212;
People vs. Luna, No. L-28174, July 31, 1974, 58 SCRA 195, 208)
Craft is included in and absorbed by treachery.

Craft is included in and absorbed by the qualifying circumstance of
treachery, because it was used to insure the commission of the crime without
any risk to the culprits. (People vs. Malig, 83 Phil. 804)
But in the case of People vs. Daos, 60 Phil. 143,154, it was held that the
aggravating circumstances of craft and treachery should be taken into
consideration, on the ground that the act of the accused in pretending to be
bona fide passengers in the taxi in order not to arouse the driver's suspicion
constitute craft; and the fact that in assaulting him they did so from behind,
catching him completely unaware, certainly constitutes treachery.
When craft was employed in robbery with homicide, not with a view to
making treachery more effective as nighttime or abuse of superior strength
would in the killing of the victim, but to facilitate the taking of the jeep in the
robbery scheme as planned by the culprits, it is not absorbed in treachery.
(People vs. San Pedro, No. L-44274, Jan. 22, 1980, 95 SCRA 306, 309)
Age and sex are included in treachery.

Disregard of age and sex may be deemed included in treachery.
(People vs. Limaco, 88 Phil. 35, 42, citing People vs. Mangsant, 65
Phil. 548)
The aggravating circumstances of disregard of age and sex, and
advantage taken of superior strength, should not have been considered
independently of the aggravating circumstance of treachery which was
already considered. (People vs. Gervacio, No. L-21965, August
30, 1968, 24 SCRA 960, 976)
Illustration of aggravating circumstance absorbed by

another.
The circumstances of nighttime, uninhabited place, cruelty and aid of
armed persons cannot be taken into consideration as aggra-
452
vating circumstances, because the first (nighttime) was necessarily included in
that of treachery; that of uninhabited place, because it has not been proven
that there were no houses near the house of the deceased; that of cruelty,
because the fire, which is the fact in which said circumstance is made to
consist, took place after the victims were already dead, the appellant not
having taken advantage of said means to deliberately augment the seriousness
of the crime; and that of aid of armed persons, because the appellant as well as
those who cooperated with him in the commission of the crime in question,
acted under the same plan and for the same purpose. (People vs. Piring, 63
Phil. 546, 553)
Dwelling is not included in treachery.

The aggravating circumstance of dwelling cannot be included in the
qualifying circumstance of treachery. (People vs. Ruzol, 100 Phil. 537, 544;
People vs. Jimenez, 99 Phil. 285, 288)
Defenseless condition of victims is included in abuse of

superior strength, not treachery.
The defenseless condition of the women and children shot to death by
the offenders should be considered as included in the qualifying circumstance
of abuse of superior strength, not as an independent circumstance of
treachery. (People vs. Lawas, G.R. Nos. L-7618-20, June 30, 1955)
Treachery is inherent in murder by poisoning.

Treachery is inherent in murder by poisoning. (People vs. Caliso, 58 Phil.
283, 295)
Treachery cannot co-exist with passion or obfuscation.

Treachery cannot co-exist with passion or obfuscation, for while in the
mitigating circumstance of passion or obfuscation, the offender loses his
reason and self-control, in the aggravating circumstance of treachery the
mode of attack must be consciously adopted. One Ignominy Par. 17
who loses his reason and self-control could not deliberately employ a
particular means, method or form of attack in the execution of the crime.
(People vs. Wong, C.A., 70 O.G. 4844)
Par. 17. — That means be employed or circumstances brought about

which add ignominy to the natural effects of the act.
453
Par. 16 Treachery
The basis has reference to the means employed.
Ignominy, defined.
Ignominy is a circumstance pertaining to the moral order, which adds
disgrace and obloquy to the material injury caused by the crime.
(U.S. vs. Abaigar, 2 Phil. 417, 418; People vs. Acaya, No. L-72998,
July 29,1988, 163 SCRA 768, 774)
Applicable to crimes against chastity, less serious

physical injuries, light or grave coercion, and murder.
This aggravating circumstance is applicable when the crime committed
is against chastity.
Ignominy aggravates the penalty for the crime of less serious physical
injuries. (Art. 265, par. 2)
Ignominy was considered in the crime of light coercion under Article
287, paragraph 2, in a case where the accused who embraced and kissed the
offended party acted under an impulse of anger rather than a desire to satisfy
his lust. The act was committed in the presence of many persons. The offended
party was a young woman. These circumstances tended to make the effects of
the crime more humiliating. (People vs. Cantong, C.A., 50 O.G. 5899)
There is ignominy to be considered in determining the proper penalty
for murder, when before he was killed, the deceased, a landowner, was forced
by the accused to kneel in front of his house
servants drawn up in line before him. (U.S. vs. De Leon, 1 Phil. 163, 164)
454
Par. 17 Ignominy
"That means be employed."

When the accused raped a woman after winding cogon grass around
his genital organ, he thereby augmented the wrong done by increasing its
pain and adding ignominy thereto. (People vs. Torrefiel,
et al., C.A., 45 O.G. 803)
"That xxx circumstances be brought about."

(1) It would be present in a case where one rapes a married woman in
the presence of her husband (U.S. vs. Iglesia, 21 Phil. 55, 57), or
alleged husband (People vs. Soriano, No. L-32244, June
24,1983,122 SCRA 740, 750-751), or where the accused rapes a
woman in the presence of her betrothed (U.S. vs. Casanas, 5 Phil.
377-378), or where a woman was successively raped by four men
(U.S. vs. Camiloy, 36 Phil. 757, 758), or where one of the victims
was raped in the presence of her husband, and the other
successively raped by five men (People vs. Detuya, No. L-39300,
Sept. 30, 1987, 154 SCRA 410, 426), or where the accused used not
only the missionary position, i.e., male superior, female inferior,
but also the dog style of sexual intercourse, i.e., entry from behind.
(People vs. Saylan, No. L-36941, June 29, 1984, 130 SCRA
159,167)
But where the rape of the wife was not perpetrated in the
presence or with the knowledge of her husband, or where the rape
was done after the husband was killed, the rape committed could
not have added ignominy to the crime. (People vs. Mongado, No.
L-24877, June 30, 1969, 28 SCRA 642, 651)
(2) There is ignominy when in compelling an old woman to confess to
the theft of clothes, the accused maltreated her and took off her
drawers because the removing of her drawers could have no other
purpose but to put her to shame. (People vs. Fernando, C.A., 43
O.G. 1717)
The crime committed in that case is grave coercion. (Art.
286)
"Which add ignominy to the natural effects of the act."

According to this clause, the means employed or the circumIgnominy
Par. 17
455
stances brought about must tend to make the effects of the crime more
humiliating or to put the offended party to shame.
The fact that the appellants, in ordering the complainant to exhibit to
them her complete nakedness for about two minutes before raping her,
brought about a circumstance which tended to make the effects of the crime
more humiliating. (People vs. Jose, No. L-28232, Feb. 6,1971, 37 SCRA 450,
476) Similarly, in a case where it was established that the accused used a
flashlight and examined the genital of the victim before he ravished her, and
committed the bestial deed in the presence of the victim's old father, the
Supreme Court held that these facts clearly show that the accused deliberately
wanted to further humiliate the victim, thereby aggravating and compounding
her moral sufferings. (People vs. Bumidang, G.R. No. 130630, Dec. 4, 2000)
Ignominy attended in this case: Between seven and eight o'clock in the
evening, the unwary victim went to the beach where she was accustomed to
void and when she squatted, the assailant unexpectedly appeared behind her,
held her hair, thus tilting her face, and while in that posture, he inserted into
her mouth the muzzle of his pistol and fired. She died. (People vs. Nierra, No.
L-32624, Feb. 12, 1980, 96 SCRA 1, 5-6,14)
But the fact that the accused sliced and took the flesh from the thighs,
legs and shoulders of the victim after killing her by the use of a knife does not
add ignominy to the natural effects of the act. (People vs. Balondo, No. L-
27401, Oct. 31,1969, 30 SCRA 155,159,
161; People vs. Ferrera, No. L-66965, June 18,1987,151 SCRA 113,
140)
It is incorrect to appreciate adding ignominy to the offense where the
victim was already dead when his body was dismembered. It is required that
the offense be committed in a manner that tends to make its effects more
humiliating to the victim, that is, add to his
moral suffering. (People vs. Carmina, G.R. No. 81404, Jan. 28, 1991, 193
SCRA 429, 436)
The mere fact that the assailant fired more shots at the prostrate bodies
of his victims is not sufficient to show the existence of ignominy. (People vs.
Pantoja, No. L-18793, Oct. 11, 1968, 25 SCRA 468, 472)
Par. 18 Unlawful Entry
No ignominy when a man is killed in the presence of his

wife.
The fact that the deceased was killed in the presence of his wife
certainly could not have such signification. The circumstance of ignominy
456
was not present, because no means was employed nor did any circumstance
surround the act tending to make the effects of the
crime more humiliating. (U.S. vs. Abaigar, supra)
Rape as ignominy in robbery with homicide.

Rape committed on the occasion of robbery with homicide increases the
moral evil of the crime, and it is incorrect to say that there is no law which
considers rape as an aggravating circumstance simply because it is not
specifically enumerated in Article 14 of the Revised Penal Code as an
aggravating circumstance. As has been held in People vs. Racaza, 82 Phil. 623,
638, rapes, wanton robbery for personal gain, and other forms of cruelties are
condemned and their perpetration will be regarded as aggravating
circumstances of ignominy and of deliberately augmenting unnecessary
wrongs to the main criminal objective under paragraphs 17 and 21 of Article
14 of the Revised Penal Code. (People vs. Tapales, No. L-35281, Sept. 10,
1979, 93 SCRA 134, 142. But see People vs. Mongado, No. L-24877, June 30,
1969, 28 SCRA 642, 651-652)
Par. 18. — That the crime be committed after an unlawful entry.

The basis has reference to the means and ways employed to commit the
crime.
Meaning of unlawful entry.

There is an unlawful entry when an entrance is effected by a way not
intended for the purpose.
To effect entrance, not for escape.

Unlawful entry must be a means to effect entrance and not for escape.
(People vs. Sunga, 43 Phil. 205, 206)
457
Art. 14
Unlawful Entry Par. 18
Example:
The act of entering through the window, which is not the proper place
for entrance into the house, constitutes unlawful entry.
Is there unlawful entry if the door is broken and thereafter made an
entry thru the broken door? No, it will be covered by paragraph
19.
Reason for aggravation.

One who acts, not respecting the walls erected by men to guard their
property and provide for their personal safety, shows a greater perversity, a
greater audacity; hence, the law punishes him with more severity.
Application of this circumstance.

It should be considered in rape committed in a house after an entry
through the window. It should be considered also in murder where the
accused entered the room of the victim through the window. It should be
considered also in robbery with violence against or intimidation of persons,
because unlawful entry is not inherent in that particular kind of robbery. The
window is not intended for entrance into the building.
But unlawful entry is one of the ways of committing robbery with force
upon things under Art. 299, par. (a), and Art. 302 of the Code. It is inherent in
this kind of robbery.
If the crime charged in the information was only theft, and during the
trial, the prosecution proved unlawful entry, it is a generic aggravating
circumstance which may raise the penalty for theft to the maximum period. It
would be improper to convict the accused of robbery with force upon things
because unlawful entry was not alleged in the information. (People vs. Sunga,
43 Phil. 205, 206)
Dwelling and unlawful entry taken separately in murders committed in a

dwelling.
When the accused gained access to the dwelling by climbing through
the window and once inside, murdered certain persons in the dwelling, there
were two aggravating circumstances which attended
Par. 19 Breaking Wall
458
the commission of the crimes — dwelling and unlawful entry. (People vs.
Barruga, 61 Phil. 318, 331)
Unlawful entry is not aggravating in trespass to dwelling.

Trespass to dwelling is committed when a private individual shall enter
the dwelling of another against the latter's will and may
be committed by means of violence. (Art. 280)
If the offender entered the dwelling of another through an opening not
intended for the purpose, like the window, the unlawful entry was an integral
part of the circumstance of violence with which the crime of trespass was
committed. (U.S. vs. Barberan, 17 Phil. 509,
511-512)
Par. 19. — That as a means to the commission of a crime, a wall, roof,

floor, door, or window be broken.

The basis has reference to means and ways employed to commit the
crime.
Is the cutting of the canvas of the tent where soldiers are sleeping covered by par.
19?
It was considered aggravating in murder where the accused cut the
ropes at the rear of a field tent and killed two soldiers inside the tent. (U.S. vs.
Matanug, 11 Phil. 188, 189, 192)
The Supreme Court called it "the aggravating circumstance of forcible
entry."
"As a means to the commission of a crime."

A broke a window to enable himself to reach a purse with money on the
table near that window, which he took while his body was outside of the
building. The crime of theft was attended by this aggravating circumstance.
Note that because of the phrase "as a means to the commission of a crime," it
is not necessary that the offender should have entered the building. What
aggravates the liability of the offender is the breaking of a part of the building
as a means to the commission of the crime.
Breaking Wall Par. 19
459
To be considered as an aggravating circumstance, breaking the door
must be utilized as a means to the commission of the crime. It is not to be
appreciated where the accused did not break the door of the victims as a
means to commit robbery with homicide where the accused after breaking the
rope which was used to close the door could have already entered the house.
Breaking of the shutters and the framing of the door to insure the elements of
surprise does not aggravate the commission of the crime. (People vs. Capillas,
No. L-
27177, Oct. 23, 1981, 108 SCRA 173, 187)
To effect entrance only.

But it may be resorted to as a means to commit a crime in a house or
building.
For example, a murderer who, for the purpose of entering the house of
his victim, breaks a wall or a window of the house.
The circumstance is aggravating only in those cases where the offender
resorted to any of said means to enter the house. If the wall, etc., is broken in
order to get out of the place, it is not an aggravating circumstance.
Breaking a part of the building is one of the means of entering the
building to commit robbery with force upon things under Art. 299, par. (a),
and Art. 302 of the Code. It is inherent in this kind of robbery. Breaking a
part of the building is not aggravating in that crime.
Where breaking of door or window is lawful.

Under Rule 113, Sec. 11 (Revised Rules of Criminal Procedure). — An
officer, in order to make an arrest, either by virtue of a warrant, or without a
warrant as provided in Section 5, may break into any building or enclosure
where the person to be arrested is or is reasonably believed to be, if he is
refused admittance thereto, after announcing his authority and purpose.
Rule 126, Sec. 7 (Revised Rules of Criminal Procedure). - The officer, if
refused admittance to the place of directed search after giving notice of his
purpose and authority, may break open any outer or inner door or window of
a house or any part of a house or anything therein to execute the warrant or
liberate himself or any person lawfully aiding him when unlawfully detained
therein.
Par. 20 Aid of Minor or by Means of Motor Vehicles
Par. 20. — That the crime he committed (1) with the aid of persons
under fifteen years of age, or (2) by means of motor
vehicles, airships, or other similar means.
460
The basis has reference to means and ways employed to commit the
crime.
Two different aggravating circumstances in paragraph 20.

Two different circumstances are grouped in this paragraph. The first
one tends to repress, so far as possible, the frequent practice resorted to by
professional criminals to avail themselves of minors taking advantage of their
irresponsibility; and the second one is intended to counteract the great facilities
found by modern criminals in said means to commit crime and flee and
abscond once the same is
committed. (Albert)
"With the aid of persons under fifteen years of age."

A caused B, a boy 14 years old, to climb the wall of the house of C, to
enter the same through its window, and once inside, to take, as in fact B took,
clothes and other personal property in the house of C. Then B threw them to
the ground where A picked them up. The aggravating circumstance that the
crime was committed with the aid of a person under fifteen years of age should
be taken into account against A.
"By means of motor vehicles."

Use of motor vehicle is aggravating where the accused used the motor
vehicle in going to the place of the crime, in carrying away the effects thereof,
and in facilitating their escape. (People vs. Espejo, No. L-27708, Dec. 19, 1970,
36 SCRA 400, 418)
May this aggravating circumstance be considered if the motor vehicle
was used, not as a means to commit the crime, but only as a means for the
flight or concealment of the offender? Judge Guevara believes that the use of
motor vehicles is aggravating "because the
same furnish a quick means for the flight or concealment of the offender."
Aid of Minor or by Means of Motor Vehicles Par. 20
The accused used the motor vehicle in going to the place of the crime, in
carrying the effects thereof and in facilitating the escape. (People vs. Espejo,
36 SCRA 400)
When the accused has decided to realize his plan of liquidating the
victim, drove his pickup with his companions, conducted a surveillance of the
461
victim's whereabouts while driving his pickup, killed the victim upon meeting
him, and made good his escape by speeding away in his vehicle, the motor
vehicle was used as a means to commit
the crime and to facilitate escape, which is aggravating. (People vs.
Cuadra, No. L-27973, Oct. 23, 1978, 85 SCRA 576, 596)
After an earlier confrontation, the principal accused caught up with the
victim on board a jeep which the former was driving. As soon as he had
stopped the vehicle, he stepped down and axed the victim, while one of several
companions stabbed him, the rest stoning him. The victim died. The jeep
having played an important role in the accomplishment of the crime and the
accused and his companions having made good their escape by speeding away
aboard the jeep in order to avoid discovery of their identities, use of motor
vehicle is aggravating. (People vs. Bardon, No. L-60764, Sept. 19,1988,165
SCRA 416, 420, 426)
Note: If the motor vehicle was used only in facilitating the escape, it
should not be an aggravating circumstance.
Where the use of a vehicle was not deliberate to facilitate the killing of
the victim, the escape of the assailants from the scene of the crime, and the
concealment of the body of the victim, but only incidental, it is not an
aggravating circumstance. (People vs. Munoz,
No. L-38016, Sept. 10,1981, 107 SCRA 313, 338)
Where it appears that the use of motor vehicle was merely incidental
and was not purposely sought to facilitate the commission of the offense or to
render the escape of the offender easier and his
apprehension difficult, the circumstance is not aggravating. (People vs.
Garcia, No. L-32071, July 9, 1981, 105 SCRA 325, 343)
Use of motor vehicle will not be considered as an aggravating
circumstance where there is no showing that the motor vehicle was purposely
used to facilitate the commission of the crime or where it is not shown that
without it, the offense charged could not have been committed. Thus, where
the primary purpose of the assailant in riding on a motorized tricycle was to
return to their camp (assail-
Par. 20 Aid of Minor or by Means of Motor Vehicles
ant was a PC enlistedman) after shooting a first victim and it was just
incidental that on his way to the camp, he happened to see the
second victim, the circumstance is not aggravating. (People vs. Mil, Nos. L-
28104-05, July 30, 1979, 92 SCRA 89, 102)
462
Estafa, which is committed by means of deceit or abuse of
confidence, cannot be committed by means of motor
vehicle.
While it is true that a jeep was used in carting away the Vicks Vaporub,
we feel that the crime of estafa was not committed by means of said vehicle.
Furthermore, under Article 14, paragraph 20 of the Revised Penal Code, that
aggravating circumstance exists only if "the crime be committed *** by means
of motor vehicles ***." (People vs. Bagtas, et al., CA-G.R. No. 10823-R,
September 12, 1955)
Theft, which is committed by merely taking personal

property which need not be carried away, cannot be
committed by means of motor vehicles.
The culprits used a car and, for part of the way, a hired jeep in going to
and coming from the place where the crime (theft) was committed. It would be
stretching the meaning of the law too far to say that the crime was committed
"by means of motor vehicles." (People vs. Real, 10 C.A. Rep. 668)
Examples of crimes committed by means of motor vehicle.

A, with the help of B and with lewd designs, forcibly took and carried
away a woman by means of an automobile to another town. The crime of
forcible abduction (Art. 342) was committed with this aggravating
circumstance.
Use of motor vehicle was aggravating in theft where a truck was used in
carrying away the stolen rails and iron and wooden ties from the scene of the
theft to the place where they were sold (People vs. Arabia, C.A., 53 O.G. 6569),
and in robbery with homicide where a motor vehicle was used in transporting
the accused. (People vs. Valeriano, 90 Phil. 15, 31, 35)
Even if the victims rode voluntarily in the jeepney, since they were lured
and taken to the place where they were killed, the use of motor vehicles was
considered aggravating. (People vs. De la Cruz, 100 Phil. 624, 634)
463
Cruelty
A jeep was used by the appellants in fetching and luring the deceased
from his house to go with them on the night in question, which they must have
used also in taking him to the spot where later on the victim's body was found.
There can be no doubt that the use of the motor vehicle facilitated the
commission of the offense. (People vs. Atitiw, 14 CAR [2s] 457, 467)
When the accused stabbed and inflicted upon his girlfriend, mortal
wounds which caused her death, while they were in a taxi which was hired and
used by him, the aggravating circumstance of by means of motor vehicle was
present. (People vs. Marasigan, 70
Phil. 583, 594)
Where the accused used a motor vehicle to insure the success of their
nefarious enterprise, the circumstance is aggravating. (People vs. Jaranilla,
No. L-28547, Feb. 22, 1974, 55 SCRA 563, 575)
Use of motor vehicle is aggravating in this case: the car of the accused
was used in trailing the victim's car up to the time that it was overtaken and
blocked. It carried the victim on the way to the scene of the killing; it
contained at its baggage compartment the pick and shovel used in digging the
grave; and it was the fast means of fleeing and absconding from the scene.
(People vs. Ong, No. L-34497, Jan. 30,1975, 62 SCRA 174, 214)
"Or other similar means."

The expression should be understood as referring to motorized vehicles
or other efficient means of transportation similar to automobile or airplane.
Thus, if the culprit, before committing and after committing the crime,
rode in a bicycle and escaped, there is no aggravating circumstance. But it is
aggravating if he used a motorcycle.
Par. 21. — That the wrong done in the commission of the crime be
deliberately augmented by causing other wrong not
necessary for its commission.

The basis has reference to ways employed in committing the crime.
Par. 21
What is cruelty?
464
Cruelty Par. 21
There is cruelty when the culprit enjoys and delights in making his
victim suffer slowly and gradually, causing him unnecessary physical pain in
the consummation of the criminal act. (People vs.
Dayug, 49 Phil. 423, 427)
For cruelty to be aggravating, it is essential that the wrong done was
intended to prolong the suffering of the victim, causing him unnecessary
moral and physical pain. (People vs. Llamera, Nos.
L-21604-6, May 25, 1973, 51 SCRA 48, 60)
For cruelty or vindictiveness to be appreciated, the evidence must show
that the sadistic culprit, for his pleasure and satisfaction, caused the victim to
suffer slowly and gradually, and inflicted on him unnecessary moral and
physical pain. (People vs. Luna, No. L-28812,
July 31, 1974, 58 SCRA 198, 209)
For cruelty to exist, it must be shown that the accused enjoyed and
delighted in making his victim suffer slowly and gradually, causing him
unnecessary physical or moral pain in the consummation of the criminal act.
(People vs. Ong, No. L-34497, Jan. 30, 1975, 62 SCRA 174, 215)
Requisites of cruelty:
1. That the injury caused be deliberately increased by causing other
wrong;
2. That the other wrong be unnecessary for the execution of the
purpose of the offender.
"Be deliberately augmented by causing other wrong."

This phrase means that the accused at the time of the commission of the
crime had a deliberate intention to prolong the suffering of the victim.
Cruelty was not present in a case where the assailant stoned twice the
victim, not for the purpose of increasing his sufferings, but to kill him (U.S. vs.
Gasal, 3 Phil. 354, 357), or in a case where the acts of the assailants showed
only a decided purpose to kill and not to prolong sufferings of the victim (U.S.
vs. Tan Corteso, 32 Phil. 104,
116), or where the purpose was to ensure the death of the three victims and to
tamper with the bullet wounds to make them appear as bolo wounds in order
to conceal the fact that a gun was used in killing them (People vs. Llamera,
supra), or where the victim was drowned in the sea after stabbing him while
bound (People vs. Luna, supra), or where the victim was buried after being
stabbed, not to make him suffer any longer but to conceal his body and the
465
Cruelty
crime itself (People vs. Ong, supra), or where the accused kicked the deceased
or placed his right foot on the body of the deceased to verify whether or not
the latter was still alive, and not for the purpose of deliberately and inhumanly
increasing his sufferings. (People vs. Mil, Nos. L-2810405, July 30, 1979, 92
SCRA 89, 101)
"Other wrong not necessary for its commission."

A and B, who had tied C in the latter's house, struck him with their guns
to make him point the place where he was keeping his money. Striking him
with the guns is "other wrong," but it is necessary for the commission of the
crime of robbery, particularly to get C's money. Hence, there is no cruelty.
Cruelty refers to physical suffering of victim purposely

intended by offender.
Cruelty requires deliberate prolongation of the physical suffering of
victim. (People vs. Dayug, supra; People vs. Llamera, supra)
Cruelty cannot be presumed.

Cruelty is not to be inferred from the fact that the body of the deceased
was dismembered, in the absence of proof that this was done while the victim
was still alive. (People vs. Jimenez, 54 O.G.
1361)
Cruelty considered in murder by burning mouth of child.

This circumstance is considered in the charge of murder for burning
the mouth and other parts of the body of an infant, 11 months old. If the
desire of the defendant had been only to kill the child, he could have carried
out his purpose without compelling the victim to undergo such great suffering
and for so long a time. (U.S. vs. Oro, 19 Phil. 548, 554)
466
Cruelty Par. 21
Par. 21
Cruelty considered in extracting victim's eye and stuffing

his mouth with mud.
After hog-tying the victim, the accused extracted the victim's left eye
from its socket with the pointed end of his cane and also stuffed the victim's
mouth with mud. Held: There is cruelty. (People vs. Mariquina, 84 Phil. 39,
40-41, 43, 44)
When the series of acts causing unnecessary sufferings

of victim took place in rapid succession, is there cruelty?
When a woman and her two daughters, one of them Corazon, were fired
at by the accused, Corazon screamed for help. One of the accused grabbed
her, raised her from the ground, while the other accused battered her with the
butt of the rifle and pounded her on the ground. Corazon died of external and
intra-cranial hemorrhage. Held: There was unnecessary cruelty. (People vs.
Beleno, 92 Phil. 868, 869, 872)
Was there a deliberate intention on the part of the accused to prolong
the suffering of the victim? There seems to be no appreciable time intervening
between or among the series of acts of the accused.
In the case of People vs. Dayug, supra, it was held that "the mere fact of
inflicting various successive wounds upon a person in order to cause his death,
no appreciable time intervening between the infliction of one wound and that of
another to show that the offender wanted to prolong the suffering of his
victim, is not sufficient for taking this aggravating circumstance into
consideration."
Plurality of wounds alone does not show cruelty.

Number of wounds alone does not show cruelty, it being necessary to
show that the accused deliberately and inhumanly increased the sufferings of
the victims. (People vs. Aguinaldo, 55 Phil. 610,615616; People vs. Manzano,
Nos. L-33643-44, July 31, 1974, 58 SCRA
250, 262; People vs. Lacao, No. L-32078, Sept. 30,1974, 60 SCRA 89, 96-97)
In the absence of a showing that the other wounds found on the body of
the victim were inflicted to prolong his suffering before the fatal wound was
dealt, it cannot be concluded that cruelty was duly proven. Cruelty cannot be
presumed. (People vs. Artieda, No. L-38725, May 15, 1979, 90 SCRA 144, 156)
466
Cruelty
Where there were many wounds because there were many assailants, the
number of wounds alone is not sufficient to show that the killing was
committed for the purpose of deliberately and inhumanly augmenting the
suffering of the victim. (People vs. Vasquez, No. 54117, April 27, 1982, 113
SCRA 772, 776)
No cruelty when other wrong was done after victim was

dead.
Cutting extremities after victim is killed is not cruelty. (People vs.
Bersabal, 48 Phil. 439, 441)
If at the time the house was set on fire the inmates who had been
seriously wounded were already dead, there is no cruelty. (People vs. Piring,
63 Phil. 546, 553; People vs. Clamania, 85 Phil. 350, 353)
Neither may we consider the circumstance of cruelty as found by the
trial court, because there is no showing that the other wounds found on the
bodies of the victims were inflicted unnecessarily while they were still alive in
order to prolong their physical suffering.
(People vs. Curiano, Nos. L-15256-57, Oct. 31, 1963, 9 SCRA 323,
347-348)
For cruelty to be appreciated as a generic aggravating circumstance,
there must be positive proof that the wounds found on the body of the victim
were inflicted while he was still alive in order unnecessarily to prolong
physical suffering. (People vs. Pacris, G.R. No.
69986, March 5,1991, 194 SCRA 654, 663)
Ignominy distinguished from cruelty.

Ignominy (par. 17) involves moral suffering, while cruelty (par. 21)
refers to physical suffering.
Rapes, robbery and other forms of cruelties are

aggravating circumstances of ignominy and cruelty in
treason.
Rapes, wanton robbery for personal gain, and other forms of cruelties
are condemned and their perpetration will be regarded as aggravating
circumstances of ignominy and of deliberately augmenting unnecessary
wrongs to the main criminal objective, under paragraphs
17 and 21 of Article 14 of the Revised Penal Code. (People vs. Racaza, 82
Phil. 623, 638)
Cruelty Par. 21
469
Par. 21
Rape as aggravating in robbery with homicide.

Where rape attends the commission of the crime of robbery with
homicide, the rape should be deemed to aggravate the robbery with
homicide. (People vs. Basca, 55 O.G. 797)
Rape as aggravating in murder.

Since the victim was already at the threshold of death when she was
ravished, that bestiality may be regarded either as a form of ignominy causing
disgrace or as a form of cruelty which aggravated murder, because it was
unnecessary to the commission thereof and was a manifest outrage on the
victim's person. (People vs. Laspardas, No. L-46146, Oct. 23, 1979, 93 SCRA
638, 645)
Aggravating circumstances peculiar to certain

felonies.
Among the aggravating circumstances peculiar to certain felonies are
the following:
1. That the offense (violation of domicile) be committed in the
nighttime, or if any papers or effects not constituting evidence of a
crime be not returned immediately after the search made by the
offender. (Art. 128, par. 2)
2. That the crime (interruption of religious worship) shall have been
committed with violence or threats. (Art. 132, par. 2)
3. That the assault (direct assault) is committed with a weapon, or
when the offender is a public officer or employee, or when the
offender lays hands upon a person in authority. (Art. 148)
4. If the crime (slavery) be committed for the purpose of assigning
the offended party to some immoral traffic, the penalty shall be
imposed in its maximum period. (Art. 272, par. 2)
5. If the threat (grave threats) be made in writing or through a
middleman, the penalty shall be imposed in its maximum period.
(Art. 282)
Cruelty
6. If the robbery with violence against or intimidation of persons
(except robbery with homicide, or robbery with rape, etc.) is
committed in an uninhabited place or by a band, etc.,
470
ALTERNATIVE CIRCUMSTANCES Art. 14
Definition and Basia
or on a street, road, highway, or alley, and the intimidation is made with

the use of a firearm, the offender shall be punished by the maximum
period of the proper penalties. (Art. 295)
7. If the robbery with the use of force upon things (Art. 299) is committed in
an uninhabited place and by a band, it shall be punished by the
maximum period of the penalty provided therefor. (Art. 300)
Alternative Circumstances
1. Definition or concept.
Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the nature and
effects of the crime and the
other conditions attending its commission.
2. Basis of the alternative circumstances.

The basis is the nature and effects of the crime and the other
conditions attending its commission.
471
Chapter Five
ALTERNATIVE CIRCUMSTANCES
Art. 15. Their concept. — Alternative circumstances are those which

must be taken into consideration as aggravating or mitigating according to the
nature and effects of the crime and the other conditions attending its
commission. They are the relationship, intoxication, and the degree of
instruction and education of the offender.
The alternative circumstance of relationship shall be taken into
consideration w h e n the offended party is the spouse, ascendant, descendant,
legitimate, natural, or adopted brother or sister, or relative by affinity in the
same degree of the offender.
The intoxication of the offender shall be taken into consideration as a
mitigating circumstance w h e n the offender has committed a felony in a state
of intoxication, if the same is not habitual or subsequent to the plan to commit
said felony; but w h e n the intoxication is habitual or intentional, it shall be
considered as an aggravating circumstance.
The alternative circumstances are:

1. Relationship;
2. Intoxication; and
3. Degree of instruction and education of the offender.
Relationship.
The alternative circumstance of relationship shall be taken into
consideration when the offended party is the —
(a) spouse,
472
Relationship
(b) ascendant,
(c) descendant,
(d) legitimate, natural, or adopted brother or sister, or
(e) relative by affinity in the same degree of the offender.
Other relatives included.

The relationship of stepfather or stepmother and stepson or
stepdaughter is included by analogy as similar to that of ascendant and
descendant. (People vs. Bersabal, 48 Phil. 439, 441; People vs.
Portento, C.A., 38 O.G. 467)
The reason for considering these relationships, as stated in the case of
People vs. Portento, supra, is that it is the duty of the stepmother to bestow
upon her stepdaughter a mother's affection, care and protection. Hence, the
effect of the crime of murder committed by the stepmother against her
stepdaughter makes the relationship aggravating.
The relationship of adopted parent and adopted child may also be
included, as similar to that of ascendant and descendant.
But the relationship between uncle and niece is not covered by any of
the relationships mentioned. (U.S. vs. Insierto, 15 Phil. 358, 361; People vs.
Balondo, No. L-27401, Oct. 31, 1969, 30 SCRA 155,
161; People vs. Lamberte, No. L-65153, July 11,1986,142 SCRA 685, 692-693)
When mitigating and when aggravating.

The law is silent as to when relationship is mitigating and when it is
aggravating.
As a rule, relationship is mitigating in crimes against property, by
analogy to the provisions of Art. 332.
Thus, relationship is mitigating in the crimes of robbery (Arts.
294-302), usurpation (Art. 312), fraudulent insolvency (Art. 314), and arson.
(Arts. 321-322, 325-326)
Under Art. 332 of the Code, no criminal, but only civil, liability shall
result from commission of the crime of theft, swindling or malicious mischief
committed or caused mutually by spouses, ascendants,
473
Art. 15 ALTERNATIVE CIRCUMSTANCES
Relationship
and descendants, or relatives by affinity in the same line; brothers and sisters
and brothers-in-law and sisters-in-law, if living together.
In view of the provision of Art. 332, when the crime committed is (1)
theft, (2) swindling or estafa, or (3) malicious mischief, relationship is
exempting. The accused is not criminally liable and there is no
occasion to consider a mitigating or an aggravating circumstance.
It is aggravating in crimes against persons in cases where the offended
party is a relative of a higher degree than the offender, or when the offender
and the offended party are relatives of the same level, as killing a brother
(People vs. Alisub, 69 Phil. 362, 364), a brother-in-law (People vs. Mercado, 51
Phil. 99, 102; People vs. Mendova, 100 Phil. 811, 818), a half-brother (People
vs. Nargatan, 48 Phil. 470, 472, 475), or adopted brother. (People vs.
Macabangon, 63 Phil. 1061-1062 [Unrep.])
Is relationship not aggravating when the offender killed his brotherin-law?

Except an admission by the appellant that the deceased was his brother-
in-law, relationship by affinity should not be deemed to aggravate the crime in
the absence of evidence to show that the offended party is of a higher degree in
the relationship than that of the offender. (People vs. Canitan, No. L-16498,
June 29, 1963, 8 SCRA 358, 364)
If the crime against persons is any of the serious physical

injuries, the fact that the offended party is a descendant of
the offender is not mitigating.
When the crime against persons is any of the serious physical injuries
(Art. 263), even if the offended party is a descendant of the offender,
relationship is an aggravating circumstance.
If the offense of serious physical injuries is committed by the offender
against his child, whether legitimate or illegitimate, or any of his legitimate
other descendants, relationship is aggravating. But the serious physical
injuries must not be inflicted by a parent upon his child by excessive
chastisement.
Art. 263 provides for a higher penalty "if the offense (any of the serious
physical injuries) is committed against any of the persons Relationship
474
enumerated in Art. 246." Art. 246, which defines and penalizes the crime of
parricide, enumerates the following persons: father, mother, or child, whether
legitimate or illegitimate, or any of his ascendants or descendants, or spouse.
When the crime is less serious physical injuries or slight

physical injuries, the ordinary rule applies.
But when the offense committed is less serious physical injuries (Art.
265); or slight physical injuries (Art. 266), relationship is a mitigating
circumstance, if the offended party is a relative of a lower degree of the
offender; and an aggravating circumstance, if the offended party is a relative
of a higher degree of the offender. Both Art. 265 and Art. 266 do not have
provisions to the contrary, as in Art. 263.
When the crime against persons is homicide or murder, relationship is

aggravating even if the victim of the crime is a relative of lower degree.
If the commission of the crime against persons resulted in the death of
the victim who is a relative of a lower degree of the offender, relationship is an
aggravating circumstance. This rule applies when the crime committed is
homicide (Art. 249) or murder. (Art. 248)
Thus, the killing of a stepdaughter by her stepmother is attended by the
circumstance of relationship which is considered as aggravating. (People vs.
Portento, supra) The crime is not parricide, because the relationship is not by
blood and in the direct line; but the relationship was considered by the Court
to aggravate the penalty, notwithstanding the fact that the victim of the crime
was a relative of a lower degree.
Relationship is mitigating in trespass to dwelling.

Where a son-in-law, believing his wife to be in her father's house,
attempted to force an entry therein, the relationship is to be considered in
mitigation. (U.S. vs. Ostrea, 2 Phil. 93, 95)
Relationship is neither mitigating nor aggravating, when

relationship is an element of the offense.
When the qualification given to the crime is derived from the
relationship between the offender and offended party, it is neither
Relationship
mitigating nor aggravating, because it is inseparable from and inher-

ent in the offense.
475
Examples: Parricide, adultery and concubinage.
In crimes against chastity, relationship is always

aggravating.
In crimes against chastity, like of lasciviousness (Art. 336), relationship is
aggravating, regardless of whether the offender is a relative of a higher or
lower degree of the offended party.
In rape —
Relationship is aggravating in a case where a stepfather raped his
stepdaughter (People vs. De Leon, 50 Phil. 539, 545); or in a case where a
father raped his own daughter. (People vs. Porras, 58 Phil. 578-579; People vs.
Lucas, G.R. No. 80102, Jan. 22,1990,181 SCRA 316, 327)
Reason for the difference in the rule.

Why is relationship aggravating in crimes against chastity even if the
offended party is a relative of lower degree?
Because of the nature and effect of the crime committed, it is considered
aggravating although the offended party is a relative of lower degree. It is not
shocking to our moral sense when we hear a father committed, for instance,
the crime of slight physical injury against his daughter; but it certainly is very
shocking when we hear that a father committed acts of lasciviousness on the
person of his own daughter.
The rule may be different because of the "other condition attending" the
While the relationship of brothers-in-law is aggravating when one
commits a crime against the other, such relationship is mitigating when the
accused killed his brother-in-law in view of the conduct pursued by the latter
in contracting adulterous relations with the wife of the accused. (U.S. vs.
Ancheta, 1 Phil. 30, 32)
Also, in a case where the deceased was suffering from an attack of
insanity and the accused, his brother-in-law, in his desire to place
476
Intoxication
the deceased under control, struck him with a club, exceeding the limits of his
discretion in the heat of the struggle, it was held that relationship was
mitigating because the cause of the maltreatment was the desire to render
service to a relative. (U.S. vs. Velarde, 36 Phil. 991, 992-993)
The reason for the difference in the rule is the "other condition
attending" the commission of the crime, which in the Ancheta case is the
conduct of the deceased in having adulterous relations with the wife of the
accused; and in the Velarde case, the desire of the accused to render service to
a relative.
Intoxication.
a. Mitigating — (1) if intoxication is not habitual, or (2) if intoxication
is not subsequent to the plan to commit a felony.
b. Aggravating — (1) if intoxication is habitual; or (2) if it is
intentional (subsequent to the plan to commit a felony).
It is intentional when the offender drinks liquor fully
knowing its effects, to find in the liquor a stimulant to commit a
crime or a means to suffocate any remorse.
Drunkenness or intoxication is mitigating if accidental, not habitual nor
intentional, that is, not subsequent to the plan to commit the crime. It is
aggravating if habitual or intentional. A habitual drunkard is one given to
intoxication by excessive use of intoxicating drinks. The habit should be actual
and confirmed. It is unnecessary that it be a matter of daily occurrence. It
lessens individual resistance to evil thought and undermines will-power
making its victim a potential evildoer. (People vs. Camano, Nos. L-36662-63,
July 30, 1982, 115 SCRA 688, 699-700)
For an accused to be entitled to the mitigating circumstance of
intoxication, it must be shown that (a) at the time of the commission of the
criminal act, he has taken such quantity of alcoholic drinks as to blur his
reason and deprive him of a certain degree of control, and (b) that such
intoxication is not habitual, or subsequent to the plan to commit the felony.
(People vs. Boduso, Nos. L-30450-51, Sept. 30,
1974, 60 SCRA 60, 70-71)
Intoxication
"When the offender has committed a felony in a state of

intoxication."
477
The last paragraph of Art. 15 says "when the offender has committed a
felony in a state of intoxication,'' by which clause is meant that the offender's
mental faculties must be affected by drunkenness.
Evidence for intoxication to be aggravating.

There is no showing of excessive and habitual use of intoxicating drinks,
or that the accused purposely got drunk in order to commit the crime, where
the witness merely declared that the accused were drinking liquor on the night
in question and were telling stories, singing, laughing, and shouting and were
very jolly, although said witness further testified that the accused used to
drink liquor every Saturday night, such testimony not being competent proof
that the accused are drunkards whose habit is to get drunk, and whose
inebriety has become habitual. In such a case, intoxication is not aggravating
but mitigating. (People vs. Moral, No. L-31139, Oct. 12,1984,132 SCRA 474,
488)
The accused's state of intoxication must be proved.

In People vs. Noble, 77 Phil. 93,101-102, the defendant testified that
before the murder, he took a bottle of wine and drank little by little until he
got drunk. The policeman who arrested the accused testified that the latter
smelled of wine and vomited. The Court held that the evidence presented was
not satisfactory to warrant a mitigation of the penalty.
Intoxication was likewise not completely proved in a case where the only
evidence was that the defendant had a gallon of tuba with him at the time he
committed the crime. (People vs. Pardo, 79 Phil.
568, 579)
In another case, intoxication was not also proved where the accused
merely alleged that when he committed the offense charged, he was
intoxicated although he was "not used to be drunk." His selfserving statement
was uncorroborated and was dismissed as devoid of any probative value.
(People vs. Apduhan, Jr., No. L-19491, Aug. 30, 1968, 24 SCRA 798, 813-814)
To be mitigating, the accused's state of intoxication must be proved.

Once intoxication is established by satisfactory evidence, in the absence of
proof to the contrary, it is presumed to be non-habitual or unintentional.
(People vs. Apduhan, Jr., supra, at 813, citing People vs. Noble, 77 Phil. 93 and
U.S. vs. Fitzgerald, 2 Phil. 419)
The accused merely alleged that when he committed the offense
charged, he was intoxicated although he was "not used to be drunk." This self-
serving statement stands uncorroborated. Obviously, it is devoid of any
probative value.
478
Intoxication
In People vs. Apduhan, Jr., 24 SCRA 798, it was held that to be
mitigating, the accused's state of intoxication must be proved. Once
intoxication is established by satisfactory evidence (People vs. Noble, 77 Phil.
93), in the absence of proof to the contrary, it is presumed to be non-habitual
or unintentional. (U.S. vs. Fitzgerald, 2 Phil. 419)
Where the court below found that the appellant was under the influence
of liquor in the afternoon immediately preceding the incident and there is no
evidence indicating that he is a habitual drunkard, the mitigating
circumstance of intoxication should be considered in favor of the appellant.
(People vs. Gongora, Nos. L-14030-31, July 31, 1963, 8 SCRA 472, 482; People
vs. De Gracia, No. L-21419, Sept. 29,
1966, 18 SCRA 197, 207)
Note: In these cases, there was no evidence that the intoxication was
intentional or subsequent to the plan to commit the crime.
Drunkenness must affect mental faculties.

The Code says nothing about the degree of intoxication needed to
mitigate; but obviously to produce such an effect, it must diminish the agent's
capacity to know the injustice of his acts, and his will to act accordingly.
(Albert)
The amount of wine taken must be of such quantity as to blur the
offender's reason and deprive him of self-control. (People vs. Cabrera, CA-
G.R. No. 13941-R, June 1, 1956)
Before drunkenness may be considered as a mitigating circumstance, it
must first be established that the liquor taken by the accused was of such
quantity as to have blurred his reason and deprived him of self-control. It
should be such an intoxication that would diminish the agent's capacity to
know the injustice of his acts,
479
Intoxication
and his will to act accordingly. (People vs. Ruiz, Nos. L-33604-05, Oct. 30,
1979, 93 SCRA 739, 760-761)
Thus, if the amount of the liquor the accused had taken was not of
sufficient quantity to affect his mental faculties, he was not in a state of
intoxication. If the accused was thoughtful enough not to neglect giving Don
Vicente Noble his injection, the inference would be that his intoxication was
not to such a degree as to affect his mental capacity to fully understand the
consequences of his act. (People vs.
Noble, 77 Phil. 93, 101-102)
Also, although the accused had taken some liquor on the day of the
shooting, if he was aware of everything that occurred on that day and he was
able to give a detailed account thereof, intoxication is not mitigating. (People
vs. Buenaflor, C.A., 53 O.G.
8879)
And although the persons participating in the act of misappropriating
public funds may, for some time prior thereto, had been drinking freely of
intoxicating liquor, yet if they were sufficiently sober to know what they were
doing when committing the unlawful act, the mitigating circumstance of
intoxication cannot be considered. (U.S. vs. Dowdell, 11 Phil. 4 [Syllabus])
"When the intoxication is habitual."

The mere fact that the accused had been drinking intoxicating liquor
about seven months and that he had been drunk once or twice a month is not
constituting habitual drunkenness. A habitual drunkard is one given to
intoxication by excessive use of intoxicating drinks. The habit should be actual
and confirmed, but it is not necessary that it be continuous or by daily
occurrence. (People vs. Amenamen, C.A., 37 O.G. 2324)
In U.S. vs. McMann, 4 Phil. 561, 565, a witness testified that he saw the
defendant drunk twelve times or more. Held: He was a habitual drunkard.
Drunkenness was also found to be habitual where the defendants
admitted in open court that before they committed the crime, they drank for
three hours and often had a drinking party. (People vs. Mabilangan, No. L-
48217, Jan. 30, 1982, 111 SCRA
398, 403)
"Or subsequent to the plan to commit a felony."

Illustration:
480
Intoxication
A decided to kill B. A planned to commit the crime by preparing the
means to carry it out. When he was ready to kill B, A drank a glass of wine
and when already intoxicated, he looked for B and killed him. Note that A
drank wine to intoxicate himself after he had planned the commission of the
crime. In this case, the intoxication is intentional.
Intoxication is mitigating where the same was not habitual nor
intentional and the crime was not the offspring of planning and deliberation
but a fatal improvisation dictated by an impromptu impulse. (People vs.
Abalos, No. L-31726, May 31, 1974, 57 SCRA 330, 338)
Even if intoxication is not habitual, it is aggravating when

subsequent to the plan to commit the crime.
In a case where the trial court found the commission of the crime of
murder to be attended by the mitigating circumstance that the accused was
drunk, but not habitually so, it was held that it appearing that the accused,
who had plotted the death of the victim, drank wine in order to embolden
himself in the carrying out of his evil plan, his intoxication cannot be
considered as a mitigating circumstance. (People vs. Hernandez, 91 Phil. 334,
344)
Reasons for the alternative circumstance of intoxication.

As a mitigating circumstance, it finds its reason in the fact that when a
person is under the influence of liquor, his exercise of will
power is impaired.
As an aggravating circumstance, because it is intentional, the reason is
that the offender resorted to it in order to bolster his courage to commit a
crime.
It is aggravating when intoxication is habitual, because the constant use
of intoxicating liquor lessens the individual resistance to evil thoughts and
undermines the will power making himself a potential evildoer against whose
activities, society has the right for its own protection to impose a more severe
penalty. (People vs.
Amenamen, supra)
Degree of Instruction and Education of Offender
Presumption is that intoxication is accidental.

The prosecution must prove that the intoxication of the offender is
habitual or intentional. (People vs. Dungka, 64 Phil. 421, 426)
481
In the absence of proof to the contrary, it will be presumed that
intoxication is not habitual but accidental, and the fact that the accused was
drunk at the time of the commission of the crime must then be considered as
a mitigating circumstance. (U.S. vs. Fitzgerald, 2 Phil. 419, 422; People vs.
Dacanay, 105 Phil. 1265, 1266 [Unrep.], citing People vs. Dungka, supra)
Non-habitual intoxication, lack of instruction and

obfuscation are not to be taken separately.
As non-habitual intoxication implies a disturbance of the reasoning
powers of the offender, his lack of instruction cannot have any influence over
him, and obfuscation which has the same effect on his reasoning powers
cannot be considered independently of non-habitual intoxication. (People vs.
Baterna, 49 Phil. 996, 997-998)
The trial court considered them separately as three distinct mitigating
circumstances and imposed a penalty one degree lower. The Supreme Court
considered them as one mitigating circumstance only and modified the penalty
imposed by the trial court by raising it and imposing the proper penalty in the
minimum period.
Degree of instruction and education of the offender.

Low degree of instruction and education or lack of it is generally
mitigating. High degree of instruction and education is aggravating, when the
offender avails himself of his learning in committing the crime.
Lack of instruction, as mitigating.

Lack of instruction cannot be taken into account where the defendant
admitted that he studied in the first grade in a public elementary school. Art.
15 applies only to him who really has not received any instruction. (People vs.
Mangsant, 65 Phil. 548, 552)
But the accused lacks education and instruction, if he did not finish even
the first grade in elementary school. (People vs. Limaco, 88 Phil. 35, 44)
482
Lack of instruction is not mitigating where the accused finished Grade
Two and answered in Tagalog, questions put to him in English. (People vs.
Luna, No. L-28812, July 31, 1974, 58 SCRA 198, 208)
Having studied up to sixth grade is more than sufficient schooling to
give the accused a degree of instruction as to properly apprise him of what is
right and wrong. (People vs. Pujinio, No. L-21690, April
29, 1969, 27 SCRA 1185, 1189-1190)
Lack of sufficient intelligence is required in illiteracy.

Not illiteracy alone, but also lack of sufficient intelligence are necessary
to invoke the benefit of the alternative circumstance of lack of instruction, the
determination of which is left to the trial court.
A person able to sign his name but otherwise so densely ignorant and of
such low intelligence that he does not fully realize the consequences of his
criminal act, may still be entitled to this mitigating circumstance. On the other
hand, another person unable to write because of lack of educational facilities
or opportunities, may yet be highly or exceptionally intelligent and mentally
alert that he easily realizes the full significance of his acts, in which case he
may not invoke this mitigating circumstance in his favor. (People vs. Ripas,
95 Phil. 63, 70-71; People vs. Geronimo, No. L-35700, Oct. 15, 1973,
53 SCRA 246, 261-262)
Mere illiteracy is not sufficient to constitute a mitigating circumstance.
There must be also lack of intelligence. (People vs. Retania, No. L-34841, Jan.
22, 1980, 95 SCRA 201, 221; People vs. Abanes, No. L-30609, Sept. 28, 1976,
73 SCRA 44, 47)
Lack of sufficient instruction is not mitigating when the

offender is a city resident who knows how to sign his
name.
Appellant is guilty of murder with the qualifying circumstance of
treachery and the aggravating circumstance of evident premeditation. The
mitigating circumstance of lack of sufficient instruction cannot be justified as
appellant is a city resident and even knows how to sign his name. The
judgment is modified and appellant is
sentenced to reclusion perpetua. (People vs. Cabrito, 101 Phil. 1253,
1254 [Unrep.])
Lack of instruction must be proved by the defense.
483
The mitigating circumstance of lack of instruction must be proved
positively and directly and cannot be based on mere deduction or inference.
(People vs. Bernardo, C.A., 40 O.G. 1707)
Lack of education must be proved positively and cannot be based on
mere deduction or inference. (People vs. Retania, supra, citing People vs.
Bernardo, supra, and People vs. Sakam, 61 Phil. 64)
Lack of instruction needs to be proven as all circumstances modifying
criminal liability should be proved directly and positively. (People vs.
Macatanda, No. L-51368, Nov. 6,1981,109 SCRA 35, 38, citing People vs.
Melendrez, 59 Phil. 154)
In the absence of any basis on record on which to judge the degree of
instruction of the accused, no evidence having been taken relative thereto
because he entered a plea of guilty, the circumstance of lack of instruction
cannot be mitigating. (People vs. Macatanda, supra, at 39)
The question of lack of instruction cannot be raised for the

first time in appellate court.
It is for the trial court rather than the appellate court to find and
consider the circumstance of lack of instruction. (People vs. Sari, 99 Phil. 1040
[Unrep].)
When the trial court did not make any findings as to the degree of
instruction of the offenders, on appeal that alternative circumstance cannot be
considered in fixing the penalty to be imposed on the accused-appellants.
(People vs. Diaz, No. L-24002, Jan. 21, 1974, 55
SCRA 178, 187)
The trial court's appreciation of lack of instruction as a mitigating
circumstance was not disturbed on appeal because the said court was in a
position to gauge appellant's level of intelligence from his appearance,
demeanor and manner of answering questions. (People vs. Manuel, Nos. L-
23786-87, Aug. 29,1969, 29 SCRA 337, 346)
Ordinarily, low degree or lack of instruction is mitigating

in all crimes.
Lack of instruction or low degree of it is appreciated as mitigating
circumstance in almost all crimes. (U.S. vs. Reguera, 41 Phil. 506,
484
520 [robbery with homicide]; People vs. Baltazar, No. L-30557, March 28,
1980, 96 SCRA, 556, 562-563 [Anti-Subversion Law]; People vs.
Talok, 65 Phil. 696, 707 [murder]; People vs. Hubero, 61 Phil. 64, 66
[homicide])
Exceptions:
1. Not mitigating in crimes against property, such as estafa, theft,
robbery, arson. (U.S. vs. Pascual, 9 Phil. 491, 495 [estafa]; People
vs. De la Cruz, 77 Phil. 444, 448; People vs. Melendrez, 59 Phil.
154, 155-156 [robbery]; People vs. San Pedro, No. L-44274, Jan.
22, 1980, 95 SCRA 306, 310 [robbery with homicide]; People vs.
Condemena, No. L-22426, May 29, 1968, 23 SCRA 910, 920
[robbery with homicide])
But in U.S. vs. Maqui, 27 Phil. 97, 101, lack of instruction
was mitigating in theft of large cattle committed by a member of
an uncivilized tribe of Igorots or in Igorot land.
But see People vs. Macatanda, No. L-51368, Nov. 6,
1981,109 SCRA 35,38,39, where the accused claimed that he was a
Moslem belonging to a cultural minority, and the high court said:
"Some later cases which categorically held that the mitigating
circumstance of lack of instruction does not apply to crimes of
theft and robbery leave us with no choice but to reject the plea of
appellant. Membership in a cultural minority does not per se
imply being an uncivilized or semi-uncivilized state of the
offender, which is the circumstance that induced the Supreme
Court in the Maqui case, to apply lack of instruction to the
appellant therein who was charged also with theft of large cattle.
Incidentally, the Maqui case is the only case where lack of
instruction was considered to mitigate liability for theft, for even
long before it, in U.S. vs. Pascual, 9 Phil. 491, a 1908 case, lack of
instruction was already held not applicable to crimes of theft or
robbery. The Maqui case was decided in 1914, when the state of
civilization of the Igorots has not advanced as it had in reaching its
present state since recent years, when it certainly can no longer be
said of any member of a cultural minority in the country that he is
uncivilized or semi-uncivilized."
485
In robbery with homicide, where the accused was illiterate,

lack of instruction was held to be mitigating. (People vs. Patricio,
79 Phil. 227,234; People vs. Mantawar, 80 Phil. 817, 823)
But in another case, it was held that the benefit of lack of
instruction is unavailing to mitigate the crime of robbery with
homicide as this circumstance is not applicable to the crime of
theft or robbery, and much less to the crime of homicide. No one,
however unschooled he may be, is so ignorant as not to know that
theft or robbery, or assault upon the person of another is
inherently wrong and a violation of the law. (People vs. Enot, No.
L-17530, Oct. 30, 1962, 6 SCRA 325, 329)
In a later case, also of robbery with homicide, it was also
held that belonging to the cultural minorities cannot conceivably
reduce, from the subjective point of view, the defendants'
awareness of the gravity of their offense, for robbery and killing
are by their very nature just as wrong to the ignorant as they are
to the enlightened. (People vs. Salip Mania, No. L-21688, Nov.
28,1969, 30 SCRA 389, 397)
2. Not mitigating in crimes against chastity, such as rape and adultery.
No one is so ignorant as not to know that the crime of rape is
wrong and in violation of the law. (Malesa vs. Director, 59 Phil.
406, 408; U.S. vs. Borjal, 9 Phil. 140,
141; People vs. Lopez, 107 Phil. 1039, 1042) How
about in treason?
Not mitigating, because love of country should be a natural feeling of
every citizen, however unlettered or uncultured he may be. (People vs.
Lansanas, 82 Phil. 193,196; People vs. Cruz, 88 Phil. 684, 687-688)
But in another case, the accused was also charged with treason. His
schooling was confined in studying and finishing caton only. Held:
Lack of instruction is mitigating. (People vs. Marasigan, 85 Phil. 427, 431)
Lack of education and instruction is not mitigating in

murder.
Lack of education and instruction cannot mitigate appellant's guilt
because to kill is forbidden by natural law which every rational being is
endowed to know and feel. (People vs. Mutya, G.R. Nos. L11255-56, Sept. 30,
1959 [Unrep.])
486
Exception:
Although ordinarily lack of instruction is not considered as an
extenuating circumstance in the crime of homicide or murder, nevertheless, in
the instant cases, the same may be so considered because the crimes would
probably not have been committed if the accused were not so ignorant as to
believe in witchcraft. The trial court likewise did not err in failing to consider
the lack of instruction as mitigating circumstance in the crime of arson as the
same does not extenuate offenses against property. (People vs. Laolao, G.R.
Nos.
L-12978-80, Oct. 31, 1959 [Unrep.])
It is also considered mitigating in murder in the following case:
The crime was murder qualified by evident premeditation, the
defendants having "for a long time" sought the encounter. There was also
abuse of superior strength — four men with knives against one unarmed
person. But this is compensated by lack of instruction, these appellants being
"ignorant people living in a barrio almost 20 kilometers away from
civilization." Consequently, the medium degree of the penalty for murder —
reclusion perpetua — becomes imposable. (People vs. Mantala, G.R. No. L-
12109, Oct. 31, 1959)
High degree of instruction, as aggravating.

Examples:
A lawyer, who, with abuse of his education and learning, commits
estafa.
A medical student who was convicted of slander by deed. (People vs.
Roque, C.A., 40 O.G. 1710)
Degree of instruction is aggravating when the offender

availed himself or took advantage of it in committing the
crime.
Thus, a doctor, who, using his knowledge, prepared certain kind of
poison to kill his victim in such a way as to avoid detection, may be
considered as having taken advantage of his high degree of instruction and
education.
487
But the fact that the accused was a lawyer was not considered
aggravating in physical injuries. (People vs. Sulit, CA-G.R. No. 21102R, Sept.
29, 1959) He did not take advantage of his high degree of education.
Title Two
PERSONS CRIMINALLY LIABLE FOR
FELONIES
Art. 16. Who are criminally liable. — The following are criminally liable
for grave and less grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies:
1. Principals.
2. Accomplices.
Treble division of persons criminally liable.

The treble division of persons criminally responsible for an offense rests
upon the very nature of their participation in the commission of the crime.
When a crime is committed by many, without being equally shared by all,
a different degree of responsibility is imposed upon each and every one of them.
In that case, they are criminally liable either as principals, accomplices, or
accessories.
Accessories are not liable for light felonies.

In view of the omission of accessories in naming those liable for light
felonies, the accessories are not liable for light felonies.
Reason: In the commission of light felonies, the social wrong as well as
the individual prejudice is so small that penal sanction is deemed not necessary
for accessories.
489
Art. 16 PERSONS CRIMINALLY LIABLE FOR FELONIES
Rules relative to light felonies:

1. Light felonies are punishable only when they have been
consummated. (Art. 7)
2. But when light felonies are committed against persons or
property, they are punishable even if they are only in the
attempted or frustrated stage of execution. (Art. 7)
3. Only principals and accomplices are liable for light felonies. (Art.
16)
4. Accessories are not liable for light felonies, even if they are
committed against persons or property. (Art. 16)
Active subject and passive subject of crime.

In all crimes there are always two parties, namely: the active subject
(the criminal) and the passive subject (the injured party).
Art. 16 of the Code enumerates the active subjects of the crime.
Only natural persons can be active subject of crime.

Only natural persons can be the active subject of crime because of the
highly personal nature of the criminal responsibility.
Since a felony is a punishable act or omission which produces or tends to
produce a change in the external world, it follows that only a natural person
can be the active subject of the crime, because he alone by his act can set in
motion a cause or by his inaction can make possible the completion of a
developing modification in the external world.
Only a natural person can be the offender because —
(a) The Revised Penal Code requires that the culprit should have
acted with personal malice or negligence. An artificial or juridical
person cannot act with malice or negligence.
(b) A juridical person, like a corporation, cannot commit a crime in
which a willful purpose or a malicious intent is required. (West
Coast Life Ins. Co. vs. Hurd, 27 Phil. 401,
407-408)
PERSONS CRIMINALLY LIABLE Art. 16 FOR
FELONIES
(c) There is substitution of deprivation of liberty (subsidiary

imprisonment) for pecuniary penalties in case of insolvency of the
accused.
490
The Code requires that the culprit should have acted with
personal malice or negligence. An artificial orjuridical person
cannot act with malice or negligence.
A corporation could not have committed a crime in which a
willful purpose or a malicious intent was required. (West Coast
Life Ins. Co. vs. Hurd, 27 Phil. 401)
There is the substitution of deprivation of liberty (subsidiary
imprisonment) for pecuniary penalties in cases of insolvency.
(d) Other penalties consisting in imprisonment and other deprivation
of liberty, like destierro, can be executed only against individuals.
(Albert)
Officers, not the corporation, are criminally liable.

A corporation can act only through its officers or incorporators, and
that as regards a violation of the law committed by an officer of a corporation,
in the exercise of his duties, he answers criminally for his acts, and not the
corporation to which he belongs, for being
an artificial person, it cannot be prosecuted criminally. (People vs. Campos,
C.A., 40 O.G., Sup. 12, 7)
Criminal actions are restricted or limited to the officials of the
corporation and never directed against the corporation itself. The courts
derived no authority to bring corporations before them in criminal actions,
nor to issue processes for that purpose. In criminal cases, defendants are
brought before the court through warrants of arrest, which are issued only
against natural persons. (West Coast Life Ins. Co. vs. Hurd, 27 Phil. 401, 407-
408)
Juridical persons are criminally liable under certain

special laws.
Under Act 1459 (Corporation Law), Com. Act No. 146 (Public Service
Law), the Securities Law, and the Election Code, corporations may be fined
for certain violations of their provisions.
Art. 16 PERSONS CRIMINALLY LIABLE FOR FELONIES
Only the officers of the corporation who participated

either as principals by direct participation or principals by
induction
or by cooperation, or as accomplices in the commission
of
491
an act punishable by law are liable.
The partnership of M, A and B was granted a franchise to operate an
electric plant. C, wife of M, was the manager of the business. M and his son
installed electric wires in the houses of their customers. A boy who was with
his father for the purpose of buying salted fish happened to hold an
uninsulated portion of an electric wire of the electric plant managed by C. As
the wire was charged with electricity, the boy was electrocuted and
consequently died.
Held: There is no evidence at all that C directly took part or aided in the
careless installation of the electric wire, a portion of which was negligently left
uninsulated by M and his son.
As a general rule, a director or other officer of a corporation is
criminally liable for his acts, though in his official capacity, if he participated
in the unlawful act either directly or as an aider, abettor or accessory, but is
not liable criminally for the corporate acts performed by other officers or
agents thereof.
The ruling enunciated in the case of West Coast Life Ins. Co. vs.
Hurd, 27 Phil. 401, 407-408, to the effect that criminal actions are restricted or
limited to the officials of a corporation and never against itself, indicates the
procedure to be taken in a criminal action when an official of a corporation is
involved, but does not point his degree of participation in order to hold him
liable for a certain criminal act as such corporate 'official. (People vs. Abdona
A. Montilla, C.A., 52
O.G. 4327)
Manager of partnership is liable even if there is no

evidence of his participation in the commission of the
offense.
In the prosecution for a violation of Section 170, paragraph 2, of the
National Internal Revenue Code, the manager of the partnership is criminally
liable, even in the absence of evidence regarding his direct participation in the
commission of the offense. It is a settled rule that since a corporation or
partnership can only act through its officers and their agents, the president or
manager can be held criminally liable for the violation of a law by the entity.
(People vs.
492
PRINCIPALS IN GENERAL Art. 17
Lao Chio, C.A., 59 O.G. 4859, citing People vs. Manuel Cartesiano,
C.A., 53 O.G. 3276)
Under the Motor Vehicle Law.

The president and general manager of a corporation which violated the
Motor Vehicles Law was held criminally liable for the offense imputable to the
corporation. (People vs. Cartesiano, C.A., 53
O.G. 3276)
Passive subject of crime.

The passive subject of a crime is the holder of the injured right: the man,
the juristic person, the group, and the State.
Thus, while a corporation or partnership cannot be the active subject, it
can be a passive subject of a crime.
Corpse or animal cannot be passive subject.

Reason: The dead and the animals have no rights that may be injured.
Exception:
Under Art. 353, the crime of defamation may be committed if the
imputation tends to blacken the memory of one who is dead.
Art. 17. Principals. — The following are considered principals:

1. Those w h o take a direct part in the execution of the
act;
2. Those w h o directly force or induce others to commit it.
3. Those w h o cooperate in the commission of the offense by another act
without which it would not have been accomplished.
Two or more persons participating in the crime.

When a single individual commits a crime, there is no difficulty in
determining his participation in the commission thereof. In fact, a single
individual committing a crime is always a principal, and one by direct
participation, because he must necessarily take direct part in the execution of
the act.
493
Art. 17 PRINCIPALS IN GENERAL
Thus, when a person kills another, there is no question as to his

participation and liability in the commission of the crime. He is a principal by
direct participation. But when two or more persons are involved in killing
another, it is necessary to determine the participation of each. If they are all
principals, all of them may be principals by direct participation (par. 1); or
one may be a principal by induction (par. 2); and the other a principal by
direct participation; or one may be a principal by direct participation and the
other a principal by indispensable cooperation, (par. 3)
Illustration of the three types of principals.

A, by promises of price and reward, induced B to kill C, a person living
on an island far from the mainland. D, the owner of the only motor boat in the
place and knowing the criminal designs of A and B, offered to transport and
actually transported B to the island. Once there, B alone killed C.
Although he did not actually participate in the killing of C, A is a
principal, because he directly induced B to kill C. B is also a principal, because
he took direct part in the execution of the felony by personally killing C. D is
also a principal, because he cooperated in
the commission of the offense by another act (transporting the actual killer to
the island) without which the commission of the offense would not have been
accomplished.
Difference between a principal under any of the three

categories enumerated in Art. 17 and a co-conspirator.
The difference between an accused who is a principal under any of the
three categories enumerated in Art. 17 of the Revised Penal Code and a co-
conspirator who is also a principal is that while the former's criminal liability
is limited to his own acts, as a general rule, the latter's responsibility includes
the acts of his fellow conspirators. (People vs. Peralta, No. L-19069, Oct. 29,
1968, 25 SCRA 759, 777) PAR. 1. - PRINCIPALS BY DIRECT
PARTICIPATION.
"Those who take a direct part in the execution of the act."
"Take a direct part in the execution of the act."

The principal by direct participation personally takes part in the
execution of the act constituting the crime.
Thus, one who shoots at and kills another or one who burns the house of
another, personally executes the act of killing another or the act of burning the
494
Principals by Direct Participation Par. 1
house of another. He is a principal by direct participation in the crime of

homicide (unlawfully killing another) or in the crime of arson (maliciously
burning another's property).
One who only orders or induces another to commit a crime is not a
principal by direct participation, because he does not personally execute the
act constituting the crime. It is the one personally committing the crime in
obedience to that order or because of the inducement, who is the principal by
direct participation.
A common-law wife who induced the killing of another commonlaw wife
of her husband by giving money to the killer is a principal by induction, while
the killer is a principal by direct participation. (People vs. Lao, No. L-10473,
Jan. 28, 1961,1 SCRA 42, 46-47, 51)
Two or more offenders as principals by direct

participation.
Two or more persons may take direct part in the execution of the act, in
which case they may be principals by direct participation.
Two or more persons who took part in the commission of the crime are
principals by direct participation, when the following requisites are present:
1. That they participated in the criminal resolution;
2. That they carried out their plan and personally took part in its
execution by acts which directly tended to the same end. (People vs.
Ong Chiat Lay, 60 Phil. 788, 790; People vs. Tamayo, 44 Phil. 38,
45-46)
Thus, where the two accused each inflicted a serious wound which
contributed to the death of the victim, they are co-principals. (People vs.
Cagod, No. L-36016, Jan. 18, 1978, 81 SCRA 110, 118)
495
Par. 1 Principals by Direct Participation
First requisite — Participation in the criminal resolution.

Two or more persons are said to have participated in the criminal
resolution when they were in conspiracy at the time of the commission of the
crime.
It is well-settled that a person may be convicted for the criminal act of
another where, between them, there has been conspiracy or unity of purpose
and intention in the commission of the crime charged. (People vs. Talla, G.R.
No. 44414, Jan. 18,1990,181 SCRA 133,148, citing People vs. Ibanez, 77 Phil.
664; People vs. Serrano, L-45382, May 13,1985, 136 SCRA 899)
Conspiracy.
A conspiracy exists when two or more persons come to an agreement
concerning the commission of a felony and decide to commit it.
(Art. 8, par. 2)
The conspiracy contemplated in the first requisite is not a felony, but
only a manner of incurring criminal liability.
To be a party to a conspiracy, one must have the intention to participate in the

transaction with a view to the furtherance of the common design and purpose.
In order to hold an accused guilty as co-principal by reason of
conspiracy, it must be established that he performed an overt act in
furtherance of the conspiracy, either by actively participating in the actual
commission of the crime, or by lending moral assistance to his co-conspirators
by being present at the scene of the crime, or by exerting moral ascendancy
over the rest of the conspirators as to move them to executing the conspiracy.
(People vs. Cortez, No. L-31106, May 31, 1974, 57 SCRA 308, 316, citing
People vs. Peralta, L-19069, Oct. 29, 1968, 25 SCRA 759, 777; People vs.
Tumalip, No. L-28451, Oct. 28, 1974, 60 SCRA 303, 318)
Mere knowledge, acquiescence, or approval of the act without
cooperation or agreement to cooperate is not enough to constitute one a party
to a conspiracy, but that there must be intentional participation in the
transaction with a view to the furtherance of the common design and purpose.
(People vs. Izon, 104 Phil. 690, 697-698, citing
15 C.J.S. 1062; People vs. Cortez, supra; Taer vs. Court of Appeals,
G.R. No. 85204, June 18, 1990, 186 SCRA 598, 604)
Silence does not make one a conspirator.
496
Silence is not a circumstance indicating participation in the same

criminal design. (People vs. Gensola, No. L-24491, Sept. 30,1969, 29 SCRA
483, 489)
Conspiracy transcends companionship.

It has been held that conspiracy transcends companionship. Hence, the
fact that the two accused may have happened to leave together, and one of
them left a closing warning to the victim, cannot instantly support a finding of
conspiracy. (People vs. Padrones, G.R. No. 85823, Sept. 13, 1990, 189 SCRA
496, 506-507)
Existence of conspiracy.
The existence of conspiracy does not require necessarily an agreement
for an appreciable length of time prior to the execution of its purpose, since
from the legal viewpoint, conspiracy exists if, at the time of the commission of
the offense, the accused had the same
purpose and were united in its execution. (People vs. Binasing, et al., 98 Phil.
908)
Conspiracy arises on the very instant the plotters agree, expressly or
impliedly, to commit the felony and forthwith decide to pursue it. Once this
assent is established, each and everyone of the conspirators is made criminally
liable for the crime actually committed by anyone of them. (People vs.
Monroy, 104 Phil. 759, 764; People vs. Talla, G.R. No. 44414, Jan. 18, 1990,
181 SCRA 133, 148) Proof of conspiracy.
a. The direct evidence of conspiracy may consist in the interlocking
extrajudicial confessions of several accused and the testimony of
one of the accused who is discharged and made a witness against
his co-accused who did not make any confession.
In the absence of collusion among the declarants, their
confessions may form a complete picture of the whole situation
and may be considered collectively as corroborative and/or
confirmatory of the evidence independent therefrom. (People vs.
Castelo, No. L-10774, May 30, 1964, 11 SCRA 193, 221-222)
Two or more extrajudicial confessions given separately,
untainted by collusion, and which tally with one another in all
material respects, are admissible as evidence of the conspiracy of
the declarants. (People vs. Bernardo,
et al., C.A., 57 O.G. 8675)
497
To establish conspiracy, it is not essential that there be proofs as to

the previous agreement and decision to commit the crime, it being
sufficient that the malefactors shall have acted in concert pursuant
to the same objective. (People vs. San Luis, 86 Phil. 485, 497; People
vs. Carpio, G.R. Nos.
82815-16, Oct. 31, 1990, 191 SCRA 108, 118; People vs.
Cruz, Jr., G.R. No. 86217, Oct. 31, 1990, 191 SCRA 127,
135; People vs. Sazon, G.R. No. 89684, Sept. 18,1990,189 SCRA
700, 713)
Formal agreement or previous acquaintance among

several persons not necessary in conspiracy.
In conspiracy, no formal agreement among the conspirators is
necessary, not even previous acquaintance among themselves; it is sufficient
that their minds meet understanding^ so as to bring about an intelligent and
deliberate agreement to commit the offense charged.
It is sufficient that at the time of the aggression, all the accused
manifested by their acts a common intent or desire to attack so that the act of
one accused becomes the act of all. (People vs. Gupo, G.R.
No. 75814, Sept. 24, 1990, 190 SCRA 7,18)
Conspiracy need not be proved by direct evidence. It need not be shown
that the parties actually came together and agreed in express terms to enter
into and pursue a common design. The assent of the minds may be and, from
the secrecy of the crime, usually inferred from proof of facts and
circumstances which, taken together, indicate that they are parts of some
complete whole. If it is proved that two or more persons aimed, by their acts,
at the accomplishment of the same unlawful object, each doing a part so that
their acts, though apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and a concurrence
of sentiment, a conspiracy may be inferred though no actual meeting among
them to concert ways and means is proved. (People vs. Mateo, Jr., G.R. Nos.
53926-29, Nov. 13, 1989, 179 SCRA 303, 320, citing
People vs. Carbonell, 48 Phil. 868)
Thus, when it is shown that all the accused were already armed when
they met, and that they went together in a jeep to the place where they robbed
the house of the offended party and raped his maids, their conspiracy is
implied. Their conspiracy is implied, notwithstanding the claim of some of the
accused that their participation therein was only of having accompanied the
498
other accused who had requested them to show the house of the offended
party. (People vs. Garduque, G.R. No. L-10133, July 31, 1958 [Unrep.])
Conspiracy is shown where the offenders were all present at the scene of
the crime, acted in concert in attacking the victims, assaulting and beating
them up and chasing them and stabbing them and in divesting them of their
watches, gold rings and money, and after the bloody slayings were done, they
fled from the scene and went their separate ways. By their concerted actions,
they showed that they acted in unison and cooperated with each other towards
the accomplishment of a common felonious purpose which was to rob and kill
the victims. (People vs. Catubig, G.R. No. 71626, March 22,
1991,195 SCRA 505, 516; People vs. Carcedo, G.R. No. 48085, June
26,1991,198 SCRA 503, 517)
Conspiracy must be established by positive and conclusive evidence.

But while conspiracy may be implied from the circumstances attending
the commission of the crime, it is nevertheless a rule that conspiracy must be
established by positive and conclusive evidence. (People vs. Ancheta, 66 Phil.
638, 644)
The same degree of proof necessary to establish the crime is required to
establish a finding of criminal conspiracy, that is, proof beyond reasonable
doubt. It cannot be established by conjectures but by positive and conclusive
evidence. Since conspiracy must be proved beyond peradventure of a doubt, it
follows that it cannot be appreciated where the facts can be consistent with the
nonparticipation of the accused in the fancied cabal. (People vs. Furugganan,
G.R. Nos. 90191-96, Jan. 28, 1991, 193 SCRA 471, 481; People vs. Cruz, G.R.
No. 74048, Nov. 14, 1990, 191 SCRA 377, 384)
Thus, where the defendant satisfactorily explained his presence with
the group that committed the robbery, he cannot be considered a conspirator.
(People vs. Rico, CA-G.R. No. 3019-R,
Jan. 12, 1950)
Thus, too, mere presence at the scene of the crime at the time of its
commission is not by itself sufficient to establish conspiracy.
(People vs. Taaca, G.R. No. 35652, Sept. 29, 1989, 178 SCRA 56,
70)
In order to hold an accused guilty as co-principal by reason of
conspiracy, it must be established that he performed an overt act in
furtherance of the conspiracy, either by actively participating in the actual
499
commission of the crime, or by lending moral assistance to his co-conspirators

by being present at the scene of the crime, or by exerting moral ascendancy
over the rest of the conspirators as to move them to executing the conspiracy.
(People vs. Peralta, No. L-19069, Oct. 29, 1968, 25 SCRA 759, 777)
When there is no conspiracy, each of the offenders is

liable only for the act performed by him.
When policeman Machica approached Guarino and Terencia who were
quarreling and told them to stop the fight, Guarino stabbed Machica and ran
away. Policeman Campos who pursued Guarino overtook the latter and took
him to the municipal building where policeman Boco hit Guarino. Then, Chief
of Police Castillo came and shot to death Guarino in the presence of Machica,
Campos and Boco who had inflicted serious physical injuries on Guarino.
There was no competent proof that Machica, Campos and Boco wanted
or intended to kill Guarino. There was no previous indication that Castillo
intended to kill Guarino. Castillo just drew out his gun and fired, and
Machica, Campos and Boco could not have stopped it even if they wanted to.
There being no conspiracy or unity of purpose and intention among the four,
Machica, Campos and Boco did not participate in the criminal resolution of
Castillo. Only Castillo who shot Guarino to death was found guilty of murder
qualified by treachery. Machica, Campos and Boco were held liable for
serious physical injuries only. (People vs. Castillo, 103 Phil. 1168
[Unrep.])
In the crime of homicide, immediate participation in the criminal design
entertained by the slayer is essential to the responsibility of one who is alleged
to have taken a direct part in the killing, but who has not himself inflicted an
injury materially contributing to the death. (People vs. Tamayo, 44 Phil. 38, 46)
Participation in criminal resolution essential.

It is not enough that a person participated in the assault made by
another in order to consider him a co-principal in the crime committed. He
must also participate in the criminal resolution of the other.
The cooperation which the law punishes is the assistance which is
knowingly or intentionally given and which is not possible without previous
knowledge of the criminal purpose. (People vs. Cruz, G.R. No. 74048, Nov. 14,
1990, 191 SCRA 377, 385)
People vs. Ortiz and Zausa
500
(55 Phil. 995)
Facts: Sotero Bancoyo, the deceased, and accused Ortiz and Zausa
had known one another for many years at the time the crime was
committed, for his wife and that of Ortiz were sisters. About noon
September 8, 1930, the deceased accompanied by three laborers,
companions of his, was returning from a plantation belonging to Pio
Brionson carrying some corn he had gathered; on reaching the house
preceding that of the accused, as he felt thirsty, he attempted to ask the
occupants for water, but as they happened to be absent, he went to the
house of the accused, and while in front of the house called out to Ortiz
for a drink of water. The latter answered from within that they had no
water and could not serve him, to which the deceased replied: "May we
not drink your water?" Ortiz rejoined, "But we have no water. How can
you compel us to give you some water?" And immediately afterwards he
descended from the house carrying his shotgun, which he pointed at the
deceased. When the latter saw the aggressive attitude of Ortiz, he flung
himself upon him, caught hold of the weapon, and they both struggled
for it. At this juncture, Modesta Zausa, companion of Bias Ortiz, took a
spear from within the house, rushed down and with it attacked the
deceased stabbing him on the left side of the abdomen, so that the
intestines protruded. (Dying declaration) The deceased fell to the
ground unconscious, was assisted, and that night died of peritonitis.
Held: The defense contends that Ortiz should be acquitted,
because he did not take part in the attack made by Modesta Zausa, and
because, according to the facts, there was no previous agreement
between them to commit the crime. In this we believe the defense is
right. It has been indisputably shown by the ante mortem statement
(Exhibit D) that while the deceased and Ortiz were struggling for the
shotgun, Modesta Zausa caught up the spear, hurried downstairs, ap-
501
proached the deceased, and suddenly stabbed him with it. From this, it
appears that there was no plan or agreement between them to carry out
the attack which ended in the death of the victim, and that from the
time Modesta Zausa thought of wounding the deceased to the time she
actually did so, barely a few seconds elapsed, and this interval is
palpably insufficient to give rise to the criminal agreement alleged in
the information.
In the United States vs. Magcomot, 13 Phil. 386,390, it was held:

"In the absence of a previous plan or agreement to commit a crime the
criminal responsibility arising from different acts directed against one and the
same person is individual and not collective, and each of
the participants is liable only for the acts committed by himself."
In the United States vs. Reyes and Javier, 14 Phil. 27 (Syllabus), one of
the defendants, named Reyes, suddenly and unexpectedly inflicted certain
mortal wounds with his club upon one Legaspi, while the latter was being held
by Javier, the other defendant. It was held: "That Javier was neither principal
nor accomplice in the commission of the crime of homicide of which Reyes was
convicted, it appearing that there was no concerted action between him and his
co-defendant, that he had no reason to believe that a homicidal attack was
about to be made, and that, in holding Legaspi, he was voluntarily cooperating
therein."
In these cases, there was no anterior conspiracy. There was no unity of
purpose and intention immediately before the commission of
the crime. Hence, their criminal responsibility is individual.
In the absence of concerted action pursuant to a common criminal
design, each of the accused, is responsible only for the consequences of his own
acts.
Thus, in a case where one accused inflicted the mortal wound by
stabbing the victim with a knife while the other two assailants merely hit the
victim with a bamboo on the left arm and the head, the former was held guilty
of murder while the latter was held liable only for lesiones leves or slight
physical injuries. In still another case where two persons attacked a single
victim, one inflicting a fatal wound hacking the victim with a bolo, almost
amputating the left arm completely, while the other also using a bolo, struck
the victim just below the armpit causing a wound that would heal in ten (10)
days, the one who inflicted the mortal wound was convicted of murder while
the other, only of less serious physical injuries. (Araneta, Jr. vs. Court of
Appeals, G.R. No. 43527, July 3, 1990, 187 SCRA 123, 133)
502
No conspiracy, as shown by the acts of the defendant.

Prosecution witness testified that after the appellant had stabbed the
deceased, he immediately ran away, so that when his brother Mauricio cut off
the head of the deceased, the appellant was no longer present. If the appellant
had agreed with his brother to liquidate the deceased, instead of fleeing after
he had stabbed the latter on the arm, he would have stayed and finished the
deceased by himself or with Mauricio. The mere act of the appellant in
stabbing the deceased once cannot conclusively prove conspiracy. It results
that the appellant should be held answerable only for his individual act.
(People vs. Quiosay, 103 Phil. 1160-1161 [Unrep.])
The gunshot wound inflicted by one of the accused being slight which
did not cause the death of the victim nor materially contribute to it in order
that he may be held liable for homicide, his liability is limited to the slight
injury he caused. Since the use of a gun fired at another shows intent to kill, he
is liable for attempted homicide and not merely for slight physical injury.
(Araneta, Jr. vs. Court of
Appeals, supra, at 133-134)
The spontaneity of the respective reactions of several accused, resulting
in an attack where they all participated, rules out the existence of conspiracy.
Their respective liabilities shall be determined by the nature of their
individual participations in the felonious act. Thus, two of them who
cooperated in the execution of the offense by simultaneous acts which,
although not indispensable to the commission of the offense, bore a relation to
the acts done by the principals and supplied material or moral aid in the
execution of the crime in an efficacious way, aware of the criminal intent of
the
principals, are liable only as accomplices. (People vs. Lacao, Sr., G.R.
No. 95320, Sept. 4, 1991, 201 SCRA 317, 329, 330-331)
The fact that two of the appellants were standing behind their
coappellant when the latter fired shots at the victim, did not make them liable
for the act of the latter, there being no proof of any conspiracy among the
three. They were not armed. They did nothing to help their co-appellant.
Their mere passive presence at the scene of the crime did not make them liable
either as co-principals or accomplices.
(People vs. Madera, No. L-35133, May 31, 1974, 57 SCRA 349, 355)
Conspiracy shown by circumstances.
503
Before the commission of the crime, Nelson drew Sumpay aside and
said, "It is a good thing that you are here, because we are planning an idea
(sic) to kill Varela;" while Norman said, "let us stab (buno) Jesus Varela."
Sumpay protested: "Why should we stab him when I do not even know him
and he has no fault?" and Norman (now appellant) retorted: "Just go with me
because he has committed a fault against me."
Held: The presence of both brothers at the place and time of the attack
on Varela; their remark to Sumpay just before the crime was committed; the
assault on the deceased by Nelson Vinas, who had no personal reason to bear
any grudge against said Varela, were circumstances showing that both
brothers had conspired to carry out the killing. (People vs. Vinas, No. L-21756,
October 28,1968,25 SCRA 682, 687)
These are telltale indicia of a community of design to kill: close
relationship among the three accused brothers and nephew; their common
desire to avenge the wrong done to their father (grandfather in the case of the
third accused); their going together to the latter's house at lunchtime all
armed; their concerted beating of the victim; their act of bringing him to the
yard of one of the brother's house, with said brother dragging the victim and
the other two accused, father and son, thrusting their rifles at his body, thus
showing that he was their common captive; and their presence at the yard
when policemen arrived thereat to investigate the killing. (People vs.
Manzano, Nos. L-33643-44, July 31, 1974, 58 SCRA 250, 259)
There was conspiracy under these facts: the four accused were together
in the yard of the victim's house when one of them called him and deceived
him as to their purpose in awakening him at three o'clock in the morning.
They were together when they rushed inside his house. As if implementing a
previously rehearsed plan, two of them assaulted him, the third took the
money, and the fourth stood guard. They left the house together after they had
accomplished their malevolent mission. The four appellants were linked to
each other by friendship or some sort of relationship. (People vs. Saliling, No.
L-27974, Feb. 27, 1976, 69 SCRA 427, 443)
Conspiracy may be shown by the appellants' actuations immediately
prior to, during, and right after the shooting of the victim, as when they were
not merely present at the scene of the crime but
were positively identified as among the armed men who arrived there, shot the
victim, and left together after accomplishing their purpose, notwithstanding
that they were not active participants in the killing itself, but made no effort to
prevent it, and in fact, drew their guns that were tucked on their waists when
504
the victim, after being shot for the first time, tried to run. (People vs.
Umbrero, G.R. No. 93021, May 8, 1991,196 SCRA 821, 829-830)
People vs. Timbol

(G.R. Nos. 47471-47473, Aug. 4,1944)
Facts: Gregorio Timbol, Carmelino Timbol, Dalmacio Timbol and

Geronimo Buan were accused of the complex crime of assault upon an
agent of authority with murder.
The accused were armed and were menacingly pressing their
demand for the approval of the 60-40 participation in the mill, which
had been denied by the Board of Directors of Pasudeco. Subsequently,
Capt. Olivas who was then present, said that, as peace officer, it was his
duty to give De Leon and Gonzales protection. Gregorio Timbol drew
his gun and shot Capt. Olivas at his back. Gregorio Timbol then shot De
Leon. Buan shot Gonzales. Carmelino with teargas gun planted himself
at the door out of the room to forestall any help that might be attempted
on behalf of the victims. Dalmacio Timbol was not present during the
shooting, because when his confederates were in the threatening
attitude, he left the room.
Held: The conspiracy in the instant case appears conclusively to
have been proved by the following circumstances: (1) On July 2,
1939, Gregorio invited Buan to a "good time" in Manila. (2) On July 6,
Gregorio and Carmelino came together to Manila. Gregorio bought a
teargas gun. He wrote a special delivery letter inviting Dalmacio to see
him without fail on July 8, the same date indicated to Buan. (3) On the
appointed date, July 8, the four accused came together to Manila. (4) All
of them carried firearms fully loaded. (5) Together, the four accused
occupied one room in the Central Hotel and threw themselves into an
orgy; dancing, drinking, gambling, and hiring prostitutes, all the
expenses having been defrayed by Gregorio. (6) The four accused, again
together, returned to Pampanga on July 12, and upon reaching San
Fernando, together they went to the Pikes Hotel to embolden themselves
with whisky. (7) About half an hour later and after making a
redistribution of firearms among themselves, all of them together left
the hotel, went to the Pasudeco offices, and entered the office of the
President, Jose de Leon. (8) After a discussion with De Leon and
Gonzales, accused Gregorio Timbol ordered them not to leave the office
until his petition for a 60-40 participation shall have been acted upon
505
favorably. (9) When the three victims were killed, the three accused fled,
again together.
All these circumstances demonstrate conspiracy.
Conspiracy is implied when the accused had a common

purpose and were united in its execution.
There is unity of purpose and unity of execution establishing conspiracy
in this case: (1) a slapping incident preceded the shooting, wherein the
deceased slapped the face of one of the appellants; (2) before the two groups
could engage in a physical clash, they were pacified by the carinderia owner
who later flagged a taxicab for the three accused; (3) the three boarded the
taxicab leaving with the slapped accused's parting words, "Pare hintay kayo,
babalik kami"; (4) they then proceeded to Unimart Greenhills arriving at the
post of a security guard whom they persuaded to lend them his carbine; (5) in
borrowing the gun, they all signed the logbook and when the carbine was
being handed to them, they were grabbing it; (6) after receiving the gun, they
again boarded the same taxicab and returned to the carinderia; (7) upon
arrival, gunshot were fired from the taxicab with the three accused on board,
hitting the victims; (8) after having fired at the victims, the three returned the
weapon, and proceeded to the headquarters of the Rizal Security and
Protective Agency, to which they belonged, where they narrated the incident.
(People vs. Damaso, G.R. Nos. 41490-92, Oct. 18, 1990, 190 SCRA
595, 612)
People vs. Delgado

(77 Phil. 11)
Facts: While Restitute Bragat and Ramon Chavez were occupying

a table in a store, the three accused arrived. All of a sudden, accused
Juanito Trinidad gave Bragat a fist blow on the back of his neck
followed by another to the mouth which blows sent him to the ground. In
the meantime, accused Edwin Delgado held Chavez by the shirt and
accused Ricardo Villanueva joined in hitting Bragat. Bragat tried to run
away, but he was overtaken by the three accused, was boxed by Delgado,
and the three accused trampled on Bragat's body. The appearance of the
police made the three accused run away.
Held: The community of purpose on the part of the three accused
is plainly inferable from these circumstances: (1) The three accused
came together to the scene of the occurrence; (2) While accused Trinidad
506
struck the first blow, accused Delgado held Chavez, and accused
Villanueva unsuccessfully attempted to hit Bragat; (3) As Bragat tried to
run away, he was pursued by the accused who trampled on his body
after he had been boxed by Delgado; (4) The three accused together left
Bragat unconscious on the ground and, together also, they went to the
house of Pepe Ybanez.
Unity of purpose and intention in the commission of the

crime is shown in the following cases:
a. Spontaneous agreement at the moment of the commission of the
crime is sufficient to create joint responsibility. (People vs. Allado,
43 O.G. 1717, citing People vs. Caballero, 53 Phil. 585)
Example:
Thus, where the deceased challenged the two accused, who
accepted, assaulted and killed the challenger, it was said that the
acceptance of the challenge by the two accused and their concert of
attack clearly showed a community of purpose and design. (People
vs. Ibanez, 77 Phil. 664, 665-
667, citing Viada, Dec. of June 13, 1904)
b. Active cooperation by all the offenders in the perpetration of the

crime will also create joint responsibility.
(1) On the occasion of a huego de anillo, where a number of people
was present, A stepped up behind the deceased and struck
him on the back of the head with a piece of wood. The
deceased reeled under the blow and turned inclining
backwards. While in this attitude, the deceased was struck
on the upper lip with a whip in the hands by B. At this
moment, C seized the deceased by the left hand and D
seized him by the right. While the deceased was still
inclining backwards with his hands held fast by C and D, E
placed himself in front of the deceased and plunged a
knife into the body of the latter. The injury inflicted by E was almost
instantly fatal, the deceased dying immediately without speaking a word.
Held: There was no proof sufficient to establish anything like an anterior
conspiracy. But the manner in which the accused cooperated in the
perpetration of the homicide shows that they were moved by a common motive
and that their intention was to accomplish the death of the deceased.
507
Dissenting: There was only individual responsibility in this case.

When A gave the deceased the first blow, producing a mere bruise, when
B dealt him the second blow, producing another slight bruise, when C later
held the deceased by one arm and D by the other, there was yet nothing to
indicate to them that there was another who sought to do away with the
deceased; for it was subsequent to all these that E who came from behind them
all, placed himself in front of the deceased and gave him the mortal blow.
None of the other accused did anything more after E had stabbed the victim.
No participation in criminal design when the act of one came so close

upon the heels of that of the other.
Reason: He had no time to see that the other intended to cause the
deceased the wound he did. (People vs. Manalo, 52 Phil. 484, 489-490)
Simultaneity per se is not a badge of conspiracy, absent the requisite
concurrence of wills. It is not sufficient that the attack is joint and
simultaneous; it is necessary that the assailants are animated by one and the
same purpose. Evidently, in a situation where the assaults were not
simultaneous but successive, greater proof is demanded to establish concert of
criminal design. (People vs. Tividad, No. L-21469,
June 30, 1967, 20 SCRA 549, 555)
508
(2) People vs. Macabuhay, 46 O.G., No. 11.

Facts: A, B, C, D, and E were in the house of F.
Someone threw a stone towards that house. Then, all the five
marched to the residence of G, 40 yards away, to avenge the
stone-throwing. In the house of G, they found the deceased.
Suspecting the deceased as the person who threw the stone,
the four of them suddenly seized and held fast the said victim
and the 5th stabbed the victim who died thereafter. The
common motive is to avenge the stone-throwing.
Held: A, B, C, D, and E were all liable as principals by

direct participation for the death of the deceased.
(3) People vs. Cruz, Jr., G.R. No. 86217, Oct. 31, 1990, 191
SCRA 127, 135.
The fact of conspiracy is well-established where one of
the appellant's companions announced the holdup while the
rest took the personal effects of the victims, the appellant
himself drawing out a bladed weapon and proceeding to rob
the victims as well.
(4) People vs. Carpio, G.R. Nos. 82815-16, Oct. 31,1990, 191
SCRA 108,118.
Conspiracy is manifested in the coordinated acts of the
assailants, of one of them holding the hand of the victim
while another was stabbing him and a third delivering fist
blows on different parts of the body of the victim, and, when
the victim was able to escape, of giving chase and the first
accused shooting the deceased five (5) times.
c. Contributing by positive acts to the realization of a common criminal
intent also creates joint responsibility.
(1) People vs. Agbuya, 57 Phil. 238.
For several years, marked enmity existed between two
families, the Palisocs and Agbuyas. A and D belonged to the
Agbuya family, while C belonged to the Palisoc family.
509
PRINCIPALS IN GENERAL
Principals by Direct Participation
A, preparatory to the commission of the crime, cleaned his

shotgun. While cleaning his shotgun, A inquired from D whether he
had seen C. Later, A carried the gun from his house to a certain place
accompanied by his son D to look for C. In that place, D waited for C
and, when the latter was coming, A handed his shotgun to D. D fired at
C, killing him then and there. Is A liable as principal or merely as an
accomplice?
Where the homicide was committed by the act of one of the two
accused in shooting the deceased with a gun which was supplied by his
co-accused, father of
the actual slayer, and where it also appeared that the latter contributed
to the commission of the homicide by various other significant acts, it
was held that both father and son were properly convicted as
principals in the crime.
There was a common criminal intent in this case, because there
was bad blood between the Agbuyas and the Palisocs and the father
and son took common cause.
People vs. Mancao, 49 Phil. 887.
The accused Crispino Mancao was the instigator and aggressor,
Roberto Villela having done nothing but to defend himself, first
disarming the former of his stick with which he was assaulted, and
later of his bolo which he used after having been deprived of his stick.
Roberto Villela might have had the advantage in the fight had not one
of Crispino Mancao's laborers come to his rescue, upon his cry for
help, and struck Roberto Villela on the thigh; then another man of
Mancao struck Roberto Villela several times on the left knee, and,
lastly, the accused Ciriaco Aguilar struck Roberto Villela several blows
on the back with his sickle, one of which nearly severed his spine in the
lumbar region which later caused his death.
Held: While it is true that the wounds which caused Roberto

Villela's death were not inflicted by Crispino Mancao but by his co-
accused Ciriaco
510
Aguilar, yet said Crispino Mancao, having been the
instigator and aggressor and having called his harvesters to
his aid, among them the said Ciriaco Aguilar, wanted them
to carry out, as in fact they did, the criminal act started by
him and, therefore, he is liable not only for his own acts, but
also for the acts of those who aided him.
Mancao contributed the following positive acts: (1) his

being the instigator, (2) his being the aggressor, and (3) his
having called his harvesters.
The common criminal intent is shown by the unity of
purpose and intention of all the offenders.
d. Presence during the commission of the crime by a band and lending
moral support thereto, also create joint responsibility with the
material executors.
(1) U.S. vs. Ancheta, 1 Phil. 165.

There were 7 defendants in this case. They had
conducted the deceased to a certain place and there, by order
of A and B, the deceased was killed by C, D and E. F and G
posted themselves with A and B at some distance to watch
the approach of any one, in order to prevent the discovery of
the crime.
Held: All of them by previously concerted action, met
together and witnessed the capture and later, the violent
killing of the deceased. Some took a direct part in the actual
commission of the crime, others were determined
instigators who induced the former to commit it, while the
remainder cooperated in the same by their presence and
lending their moral support. The four who were not the
actual perpetrators thereof, witnessed the commission of the
crime, lending to the murderers their moral support and,
therefore, all are thus directly responsible for the
consequences and incidents of the same.
(2) U.S. vs. Santos, 2 Phil. 453.

Facts: A band composed of some 25 men succeeded in
capturing 5 American soldiers and subse-
511
Art. 17
Par. 1
quently took them to a certain place and detained them in a

house there. Five of the band, among them the accused,
subsequently took the Americans from the house in which
they were living and led them away. The Americans were
killed by two members of the band in the presence of the
accused and the other three of the same band.
Held: It is of no importance that the accused did not
himself strike the blow or blows by which the prisoners
were killed. It is sufficient that he was
present at the place of the commission of the act, augmenting
with his arms and presence the power of the band, thus aiding
the common act of all, for him to be considered as a principal
by direct participation in the crime prosecuted.
Note: There is a band in these cases. This circumstance
is presumptive of a previous understanding between one
offender and the others who formed the band, whereby he
voluntarily lent his assistance of thought and action for the
realization of the criminal object, increasing at least with his
personal cooperation, in an effective manner, the offensive
strength of said band. (U.S. vs. Asilo, 4 Phil. 175,176)
Conspiracy is presumed when the crime is committed by
a band.
Where the accused was a member of a band that
appeared at the house of the deceased for the purpose of
killing the latter, as he was in fact killed by two of the shots
fired by some members of the band, the accused is liable for
the resulting homicide although there was no evidence that
he fired a shot at the deceased. (U.S. vs. Asilo, 4 Phil. 175,
176; U.S. vs.
Perez, 13 Phil. 287, 291)
But where at the start of the encounter between the
constabulary forces and an insurgent band, the accused, who
was with the band, fled from the scene of the fight and did
not take part therein, he is not criminally liable. (U.S. vs.
Fresnido, 4 Phil. 522, 525) Where the robbery was
committed by a band, all the members of the band are
512
presumed to be conspirators or co-principals also in the
assaults committed by the band unless he who claims to be a
non-conspirator proves that he attempted to prevent the
assault. In the absence of a showing that appellants
attempted to prevent the killing of the victim, they are
equally guilty of his death at the hands of their companions.
(People vs. Bazar, No. L-41829, June 27, 1988, 162 SCRA
609,617; People vs. Cinco, G.R. No. 79497, Feb.
27, 1991, 194 SCRA 535, 543)
e. Where one of the accused knew of the plan of the others to kill the
two victims and he accepted the role assigned to him, which was to
shoot one of the victims, and he actually performed that role, he is
a co-principal by direct participation in the double murder. (People
vs. De la Cruz, 100 Phil. 624, 632-633)
There may be conspiracy even if there is no evident

premeditation on the part of the accused.
Although the presence of Sinarimbo's 10-year-old child, and the fact
that appellants were unarmed may indicate lack of evident premeditation on
their part, these circumstances and the otners do not necessarily negate the
existence of conspiracy for the same does not require necessarily an agreement
for an appreciable time prior to the occurrence. From the legal viewpoint,
conspiracy exists if, at the time of the commission of the offense, the accused
had the same purpose and were united in its execution. (People vs. Binasing,
98 Phil. 902, 908, citing U.S. vs. Ancheta, 1 Phil. 165; U.S. vs. Santos, 2
Phil. 453; People vs. Mandagay, 46 Phil. 838; People vs. Agbuya, 57
Phil. 238; People vs. Ibanez, 77 Phil. 664; People vs. Macabuhay, 83 Phil. 464;
People vs. San Luis, 86 Phil. 485)
Liability of participants where there is conspiracy.

Where there is conspiracy, the act of one is the act of all. There is
collective criminal responsibility.
Where it appears that the defendants, after conspiring together to kill
the deceased, went to his house for the purpose of carrying Art. 17 Par. 1
out their common intent and prepared to cooperate to that end, and some of
them actually killed the deceased, while the others posted themselves around
the building ready to prevent his escape or render any assistance which
might be necessary, all will be held equally guilty as principals irrespective of
513
the individual participation of each in the material act of the murder. (U.S.
vs. Bundal, 3 Phil.
89)
Where conspiracy has been adequately proven, all the conspirators are
liable as co-principals regardless of the extent and character of their
participation because in contemplation of law, the act of one is the act of all.
The degree of actual participation by each of the conspirators is immaterial.
As conspirators, each is equally responsible for the acts of their co-
conspirators. (People vs. De la Cruz, G.R. No. 83798, March 29, 1990, 183
SCRA 763, 778; People vs. Carcedo, G.R. No. 48085, June 26,1991,198 SCRA
503, 517-518; People vs. Alvarez, G.R. No. 88451, Sept. 5, 1991, 201 SCRA
364, 380)
Liability of a conspirator for another conspirator's acts which

differ radically and substantially from that which they
intended to commit.
A conspirator should necessarily be liable for the acts of another
conspirator even though such acts differ radically and substantially from that
which they intended to commit. (See People vs. Enriquez, 58 Phil. 536; People
vs. Rosario, 68 Phil. 720)
In a case, the Supreme Court said:
"Upon the circumstance that the wound made with the knife on the leg
of the person assaulted was the primary cause of death and that the author of
this injury has not been identified, the attorneys for the accused chiefly
planted their defense, and in this connection it is insisted that the conspiracy
to attack Gines contemplated only beating him up and did not include the
infliction of injury by means of a cutting instrument. Such an act, so it is said,
was not within the scope of the agreement; and it is insisted that only the
individual who inflicted the cut (wound) could be held responsible for the
death, if that person were known. It results, in this view, that none of the
appellants can be held liable further than for the bruises inflicted by means of
the iron bars. These injuries, so it is claimed, would in the natural course of
events have been curable in a few days.
"We are of the opinion that this contention is not tenable. The accused
had undoubtedly conspired to do grave personal injury to the deceased, and
now that the injuries actually inflicted have resulted in death, they cannot
escape from the legal effect of their acts on the ground that one of the wounds
was inflicted in a different way from that which had been intended. A blow
inflicted by one of the small iron bars used in this assault might well have
514
resulted in the taking of life, and the circumstance that a knife was also used
in striking the deceased does not relieve the appellants from the consequence
of their joint acts. As has been said by the Supreme Court of the United States,
'If a number of persons agree to commit, and enter upon the commission of a
crime which will probably endanger human life such as robbery, all of them
are responsible for the death of a person that ensues as a consequence.' (Boyd
vs. U.S., 142; U.S., 450; 35 Law ed., 1077). In United States vs. Patten, the
Court said: 'Conspirators who join in a criminal attack on a defenseless man
with dangerous weapons, knock him down, and when he tries to escape,
pursue him with increased numbers, and continue the assault, are liable for
manslaughter when the victim is killed by a knife wound inflicted by one of
them during the beating, although in the beginning they did not contemplate
the use of a knife.'" (People vs. Enriquez, 58 Phil. 536,
542-543)
And in another case: "There is no question that the four assailants acted
in conspiracy with each other. This was evident from the time they went to
Bernardo's house pretending to look for a lost carabao and, more
convincingly, when they moved in concert to kill Bernardo even as the two
witnesses were pulled away by the hair, after which all four of them fled
together. As conspirators, they are each liable for the attack on Bernardo,
regardless of who actually pulled the trigger or wielded the club that killed
him." (People vs. Espiritu, G.R. No. 80406, Nov. 20,1990, 191 SCRA 503, 507)
Suppose that three persons conspired to commit robbery only, but in the
course of the robbery one of them killed an inmate of the house, must all of
them be held liable for robbery with homicide?
It seems that the others must not be held responsible for the
homicide which was not contemplated in their conspiracy and in which
they did not take part. The reason for this opinion is that Art. 296 of the
Revised Penal Code defines the liability of the offenders in robbery if
committed by a band, that is, any
515
member of a band (at least four armed men) is liable for any assault
committed by the other member of the band, unless it be shown that he
attempted to prevent the same.
Hence, if the robbers are only three, or even more than three but
not more than three are armed, Art. 296 is not applicable and the
robber who does not take part in the assault is not liable therefor.
Where there is conspiracy to commit a felony, all the

conspirators are liable for its consequences.
It is argued for appellant Barauel that inasmuch as there was no
conspiracy to kill Acuna, and inasmuch as Barauel only hit him with an iron
bar, the latter may not be held responsible for the death. Held: Since there was
conspiracy to punish Acuna, and the death of Acuna resulted, all the
conspirators are responsible for the consequences that arose from the
punishment. (People vs. Villamora, 86 Phil. 287, 291)
Note: The ruling is in accordance with the provision of Article 4,

paragraph 1, of the Revised Penal Code.
A conspirator is not liable for another's crime which is not

an object of the conspiracy or which is not a necessary
and logical consequence thereof.
In the case of People vs. Umali, 96 Phil. 185, where only the Huks, allies
of defendant Umali, committed robbery which was not an object of the
conspiracy, it was held that defendant Umali was not liable therefor, but liable
for sedition, arson and murder, the objects of the conspiracy.
Other defendants not held liable for the killings of persons not covered by the
conspiracy.
Appellant Sulpicio cannot be held liable for the killing of Casiano

Cabizares, notwithstanding a conspiracy between him and Serapio Maquiling.
The conspiracy was to kill Rafael only and no one else. Nothing was said or
agreed upon about the members of Rafael's family. In fact, in executing their
plan, appellants let the two women inside Demetrio's house leave unhurt and
they did no harm to the remaining companions of Rafael in the house. Their
target was solely Rafael Cabizares. And the rule has always been that co-
conspirators are liable only for acts done pursuant to the conspiracy. For other
516
acts done outside the contemplation of the co-conspirators or which are not the
necessary and logical consequence of the intended crime, only the actual
perpetrators are liable. (People vs. De la Cerna, G.R. No. L-20911, October 30,
1967, 21 SCRA 569, 586, citing People vs. Hamiana, 89 Phil. 225; People vs.
Daligdig, 89 Phil. 598; People vs.
Umali, 96 Phil. 185; People vs. Duenas, L-15307, May 30,1961, and I Reyes,
The Rev. Penal Code, 432-433)
The ruling in the case of People vs. De la Cerna, supra, should be

distinguished from the ruling in the cases of People vs. Enriquez, 58 Phil. 536,
and People vs. Rosario, 68 Phil. 720. Conspirators are liable for the acts of
another conspirator even though such acts differ radically and substantially
from that which they intend to commit. This is in accordance with the
provision of Art. 4, par. 1, of the Revised Penal Code. But when the
conspirators selected a particular individual to be their victim, and another
person was killed by one of them, only that conspirator who killed another
person would be liable therefor.
Conspiracy may cover persons previously undetermined.

Even if the conspiracy was only against Jose de Leon and not against
Augusto Gonzales and Capt. Olivas whose intervention was merely accidental
and could not have been foreseen by the accused when they were preparing
their plan, the accused are liable for all the natural and inherent consequences
of such plan, it appearing that there was a general plan to kill anyone who
might put up violent resistance. (People vs. Timbol, supra)
A person in conspiracy with others, who had desisted

before the crime was committed by the others, is not
criminally liable.
"Although this appellant (Dalmacio Timbol) was a member of the
conspiracy, yet he desisted therefrom before the intended crimes were
committed. He left the office of De Leon and the Pasudeco building long
before the killings took place.
"And since conspiracy alone, without the execution of its purpose, is
not a crime punishable by law, except in special instances (Art. 8), none of
which is the case at bar, Dalmacio Timbol is not crimi-
nally liable." (People vs. Timbol, G.R. Nos. L-47471-47473, August
4, 1944)
517
It was held that the act of a conspirator who, as soon as the aggression
was started by his co-conspirators, ran away and called for help of other
persons who hurriedly responded, is an act of desistance from taking an active
part in the aggression which removes the case from the operation of the
established rule that when a conspiracy is proved, the act of one co-
conspirator is the act of all. (People vs. Mappala, 40 O.G. 1681)
When there is conspiracy, it is not necessary to ascertain

the specific act of each conspirator.
It is not necessary to ascertain the specific acts of aggression committed
by each of the culprits, since, having participated in the criminal resolution,
the act of one is the act of all. (People vs. Mendoza,
91 Phil. 58, 63)
Conspiracy having been established, it is immaterial who of the
conspirators fired the fatal shot. (People vs. Canoy, G.R. Nos. L-465354, Jan.
30, 1953, 92 Phil. 1076 [Unrep.])
For indeed, it is well-entrenched in our jurisprudence that when there is
conspiracy, the act of one is the act of all, and all persons taking part in the
crime shall be held guilty as principals. It is of no moment that not all the
accused took part in the actual commission of every act constituting the crime.
Each is responsible for all the acts of the others done in furtherance of the
conspiracy. The degree of actual participation is immaterial. (People vs.
Maranion, G.R. Nos. 90672-73, July 18,1991,199 SCRA 421,433, citing earlier
cases. Also People vs. Base, G.R. No. 921,196 SCRA 688, 696; People vs. Moka,
G.R. No. 88838, April 26, 1991, 196 SCRA 378, 385-386; People vs.
Catubig, G.R. No. 71626, March 22, 1991, 195 SCRA 505, 516-517)
Conspiracy having been established, it is immaterial whether it was VC

or SG who fired the fatal shot. (People vs. Canoy, et al., G.R. Nos. L-4653-4654,
Jan. 30, 1953)
When there is conspiracy, the fact that an element of the

offense is not present as regards one of the conspirators
is immaterial.
Thus, in the complex crime of seduction by means of usurpation of
official functions, where one of the accused simulated and falsely pretended to
be a minister authorized to perform marriage ceremonies and did simulate
that he was performing a marriage ceremony between his co-accused and a girl
in order thus the more easily to deceive her and cause her to live in marital
relations with the other accused, the element of performance of official
functions was present as regards one of the accused only; but the Supreme
Court declared the other accused guilty of, and sentenced him to the penalty
518
for, the same crime complexed with seduction which he actually committed.
(U.S. vs. Hernandez, 29 Phil. 109)
All are liable for the crime of abduction, even if only one acted with lewd designs.
Lewd designs on the part of the offender is an essential element of the
crime of abduction. (Art. 342 — forcible abduction; Art. 343 — consented
abduction)
In a case where defendant Canaria conspired with his co-defendant
Loyola to forcibly abduct Caridad and, in furtherance of the conspiracy, took a
direct part by positive overt acts necessary to the realization of the abduction,
it was held that it was of no moment that Loyola alone acted with lewd designs,
for once conspiracy is established, the acts of one are considered the acts of all.
(People vs. Loyola, C.A., 51 O.G. 253)
In multiple rape, each rapist is equally liable for the other

rapes.
In a long line of cases, it has been held that in multiple rape, each
defendant is responsible not only for the rape personally committed by him,
but also for the rape committed by the others, because each of them cooperated
in the commission of the rape perpetrated by the others, by acts without which
it would not have been accomplished. (People vs. Fernandez, G.R. No. 62116,
March 22, 1990, 183 SCRA 511, 517-518)
Exceptions:
1. In the crime of parricide, the element of relationship must be present as
regards all the offenders.
If the wife and son of the deceased conspired to kill the latter and
did kill him, both the wife and the son are guilty of parricide. But if the
wife of the deceased and a stranger conspired
519
Par. 1
to kill him and did kill him, only the wife is guilty of parricide and the
stranger is guilty of homicide or murder, as the case may be. (People
vs. Patricio, 46 Phil. 875)
The reason for the exception is that Art. 62, par. 3, provides that
aggravating circumstances which arise from the
private relations of the offender with the offended party shall serve to
aggravate only the liability of the principals, accomplices - and accessories
as to whom such circumstances are attendant. This provision applies when
the element of the felony arises from the private relation of the offender
with the offended party.
2. In the crime of murder where treachery is an element of the crime, all the
offenders must at least have knowledge of the employment of treachery
at the time of the execution of the act or their cooperation therein.
Thus, if A and B who conspired to kill C, carried out their plan
without previously considering the means, methods, or forms in killing
the latter, and only A employed treachery, since B was present during
the killing and knew the employment of treachery by A, both are liable
for murder.
But if B remained at the gate of the premises of C, and only A
actually killed C in the latter's house with treachery, so that B did not
know of the employment of treachery, only A is liable for murder and B
is liable for homicide.
The reason for this exception is that Art. 62, par. 4, provides that
the circumstances which consist in the material execution of the act, or
in the means employed to accomplish it, shall serve to aggravate the
liability of those persons only who had knowledge of them at the time of
the execution of the act or their cooperation therein. Treachery is either
a qualifying or a generic aggravating circumstance.
Participation in another's criminal resolution must either

precede or be coetaneous with the criminal act.
People vs. Tan Diong
(59 Phil. 539)
Facts: Tan Diong, to avoid the execution of the judgment against
him in a civil case, transferred his properties by unilateral deeds of
520
conveyance with fictitious consideration in favor of Eustaquio Baranda
whose participation was only his testifying falsely in court that he had
acquired the properties with sufficient consideration.
Held: As to Eustaquio Baranda, we note that the conveyances by
which these properties were conveyed to him were of a unilateral
character. Baranda did not participate in the conveyances, and his
alleged participation in the fraud consisted only in the fact that he as-
serted ownership in the properties conveyed. In our opinion, this does not
justify his conviction as a participant in the fraud. His resolution to
accept the benefit of the fraudulent conveyances may have been formed
only after the act of Tan Diong. His guilt as a co-conspirator in the fraud
is, therefore, not proved.
Note: Baranda would have been liable as a co-principal, had he
concurred with Tan Diong at the time of or before the execution of the
deeds of conveyance.
There could be no conspiracy to commit an offense

through negligence.
Since conspiracy presupposes an agreement and a decision to commit a
felony, when it appears that the injuries inflicted on the offended party were
due to the reckless imprudence of two or more persons, it is not proper to
consider conspiracy between or among them.
In cases of criminal negligence or crimes punishable by

special law, allowing or failing to prevent an act to be
performed by another, makes one a co-principal.
Thus, a professional driver of a passenger truck who allowed his
conductor to drive the truck which, while being driven by the latter, bumped a
jeepney resulting in the death of one jeepney passenger, was held criminally
liable as co-principal of homicide and damage to property through reckless
imprudence under Act No. 3992 and Art.
365 of the Revised Penal Code. (People vs. Santos, C.A., 44 O.G. 1289) Both
the driver and the conductor were held liable as co-principals.
Also, a storeowner was held criminally liable under the Pure Food and
Drugs Act for the act of his employee, in selling adulterated coffee, although
the storeowner did not know that the coffee was sold by his employee. (U.S.
vs. Siy Cong Bieng and Co Kong, 30 Phil. 577) Both the storeowner and the
employee were held liable as principals.
521
Par. 1
Second requisite — (Principals by direct participation)

That the culprits "carried out their plan and personally took part in its
execution, by acts which directly tended to the same end."
The principals by direct participation must be at the scene

of the crime, personally taking part in its execution.
A principal by direct participation must personally take part in executing
the criminal plan to be carried out. This means that he must be at the scene of
the commission of the crime, personally taking
part in its execution.
Thus, in the case of People vs. Ong Chiat Lay, 60 Phil. 788, it was held
that one of the accused was not a principal by direct participation because he
was absent from the scene of the fire when the crime of arson was committed
by the other accused.
The exception to the rule that to be a principal by direct participation,
the offender must be at the scene of the commission of the crime, is the case
where there was conspiracy to kidnap and kill the victim and only one of the
conspirators kidnapped the victim and, after turning him over to his co-
conspirators for execution, left the spot where the victim was killed. The one
who kidnapped the victim was liable for murder committed by the others. The
reason for the exception is that by kidnapping the victim, he already performed
his
part and the killing was done by his co-conspirators in pursuance of the
conspiracy. (People vs. Santos, 84 Phil. 104)
The acts of each offender must directly tend to the same

end.
While the principals by direct participation personally take part in the
execution of their common purpose, it is not necessary that each of them
should perform a positive act directly contributing to the accomplishment of
their common purpose.
In a murder which the offenders previously agreed to commit, not only
the one who inflicts the fatal wound is considered a principal, but also the one
who holds down the victim and the one who lies in wait at the door to prevent
any help from being rendered. The acts of each and every one of the offenders
in this case are all directed to the same end, that is, the killing of their victim.
522
Criminal responsibility in such a case is collective. (People vs. Mandagay, 46
Phil. 838)
One serving as guard pursuant to the conspiracy is a

principal by direct participation.
The appellants were part of the plot to rob the victim. At the time of the
robbery, they stood guard outside the house, while their co-accused entered
the victim's dwelling. They are equally liable as the others. (People vs.
Canumay, No. L-29181, July 9,1984,130 SCRA 301, 308)
Thus, one who stands guard outside the house for the purpose of
keeping others away, or of warning his fellow-conspirators of danger of
discovery, while the latter are murdering the occupant, takes a direct part in
the commission of the crime of murder, and is guilty as a principal by direct
participation. He is in fact present, aiding, and
abetting in the commission of the crime. (U.S. vs. Reogilon, 22 Phil. 127; U.S.
vs. Diris, 26 Phil. 133)
Exception:
People vs. Samano

(77 Phil. 136)
Facts: The accused were jointly tried for the murder of three
persons. Said accused were members of a guerrilla unit and were
charged with having taken the deceased Lorenzana to their
headquarters and beating him to death while investigating him on
charges of espionage for the Japanese. The other accused admitted their
guilty participation in the crime. Accused Samano and Alcantara
admitted that they acted as guards near the place of the crime, but that
they did so in obedience to superior orders and without knowledge that
the deceased who was then under investigation would later be killed.
There was no evidence that there was conspiracy between those who
pleaded guilty and the present appellants.
Held: When there is no conspiracy or unity of criminal purpose
and intention indicating participation in the criminal resolution, mere
passive presence at the scene of another's crime does not constitute
complicity.
When the second requisite is lacking, there is only

conspiracy.
523
The second requisite is that the persons who have participated in the
criminal resolution, must carry out their plan and personally
524
Par. 2 Principals by Induction
take part in its execution by acts which directly tend to the same end.
If this second requisite is lacking, at most, there is only a conspiracy
among the several defendants who participated in the CTiminal resolution,
and if the crime they agreed and decided to commit is not treason, rebellion or
sedition, they are not criminally liable.
Thus, if four of the accused merely attended the conferences and entered
no opposition to the nefarious scheme, merely assenting out of respect and
fear, and after the commission of the murders they
joined with the other accused in celebrating with a fiesta, by way of custom,
they were neither co-principals nor accomplices. (People vs.
Asaad, 55 Phil. 697)
This is the reason why Dalmacio Timbol, who merely conspired with his
co-accused to kill the deceased but left the place before his co-accused began
shooting the deceased, was acquitted of the charge of murder. (People vs.
Timbol, G.R. Nos. L-47471-73, August 4,1944)
Even if G's participation in the first meeting sufficiently involved him in
the conspiracy (as he was the one who explained the location of the house to be
robbed in relation to the surrounding streets and the points thereof through
which entrance and exit should be effected), such participation and
involvement, however, would be inadequate to render him criminally liable as
a conspirator. The reason for this is that conspiracy alone, without the
execution of its purpose, is not a crime punishable by law, except in special
instances (Article 8, Revised Penal Code) which, however, do not include
robbery. (People vs. Pelagio, G.R. No. L-16177, May 24,1967, cited in People
vs. Peralta, No. L-19069, Oct. 29, 1968, 25 SCRA 759, 777-778)
PAR. 2. - PRINCIPALS BY INDUCTION.
"Those who directly force or induce others to commit it."
Paragraph No. 2 of Art. 17 provides for the second class of

principals.
The second class of principals, according to Article 17 of the Revised
Penal Code, comprises "those who directly force or induce others to commit it
(the act)." Those who directly induce others to commit the act are called
"principals by inducement" or "principals by induction," from the Spanish
"autores por induction." The word "inducement" comprises, in the opinion of
Viada and the Supreme Court of Spain, price, promise of reward, command,
and pacto. (People vs. Gensola, No. L-24491, Sept. 30, 1969, 29 SCRA 483, 490)
525
The principal by induction becomes liable only when the
principal by direct participation committed the act
induced.
Thus, in the case of People vs. Ong Chiat Lay, 60 Phil. 788, it was held
that one cannot be held guilty of having instigated the commission of the crime
without first being shown that the crime was actually committed by another.
Two ways of becoming principal by induction.

There are two ways of becoming a principal by induction under the
second paragraph of Art. 17, namely:
(1) by directly forcing another to commit a crime, and
(2) by directly inducing another to commit a crime.
By directly forcing another to commit a crime.

There are two ways of directly forcing another to commit a crime. They
are:
a. By using irresistible force.
b. By causing uncontrollable fear.

In these cases, there is no conspiracy, not even a unity of criminal
purpose and intention. Only the one using force or causing fear is criminally
liable. The material executor is not criminally liable because of Art. 12, pars. 5
and 6.
By directly inducing another to commit a crime.

There are two ways of directly inducing another to commit a crime.
They are:
a. By giving price, or offering reward or promise.
Both the one giving the price or offering reward or
promise and the one committing the crime in consideration
thereof are principals — the former, by inducement;
Par. 2 Principals by Induction
and the latter, by direct participation. There is collective

criminal responsibility.
526
PRINCIPALS IN GENERAL Art. 17 Principals by
Induction Par. 2
A wife, who induced the killing of the mistress of her
husband by giving money to the killer, is a principal by induction.
The killer is a principal by direct participation.
(People vs. Lao, No. L-10473, Jan. 28, 1961, 1 SCRA 42)
b. By using words of command.

Both the person who used the words of command and the
person who committed the crime, because of the words of
command, are equally liable. There is also collective criminal
responsibility. (U.S. vs. Gamao, 23 Phil. 81)
Requisites:
In order that a person may be convicted as a principal by inducement,
the following requisites must be present:
1. That the inducement be made directly with the intention of
procuring the commission of the crime; and
2. That such inducement be the determining cause of the commission
of the crime by the material executor. (U.S. vs. Indanan, 24 Phil.
203; People vs. Kiichi Omine, 61 Phil. 609)
To constitute inducement, there must exist on the part of the inducer the
most positive resolution and the most persistent effort to secure the commission
of the crime, together with the presentation to the person induced of the very
strongest kind of temptation to commit the crime. (U.S. vs. Indanan, supra)
Illustration of the first requisite.

When the accused, blinded by the grudge which she bore against the
deceased, caused her co-accused thru promise of pecuniary gain to shoot the
victims with a gun which she had furnished the latter, it is clear that she had
the intention of procuring the commission of the crime. (People vs. Otadora,
86 Phil. 244)
In the case of a married woman who suggested to her paramour that he
kill her husband in order that thereafter they might live together freely and
the paramour, acting upon these suggestions, killed him, it was held that the
proposition of the woman constituted something more than mere counsel or
advice which her co-defendant was entirely free to accept or not. It was
coupled with a consideration which, in view of the relations existing between
them, furnished a motive strong enough to induce the man to take the life of
her husband. (U.S. vs. Alcontin, 10 O.G. 1888, cited in U.S. vs. Indanan, supra;
People vs. Giron, 82 Phil. 783)
The cases cited also illustrate the second requisite. In the
527
Otadora case, the promise of pecuniary gain was the determining cause of the
commission of the crime by the principal by direct participation. In the
Alcontin case, the proposition of the woman, in view of the relations existing
between her and the other accused, was the determining cause of the
commission of the crime by the latter.
A thoughtless expression without intention to produce the

result is not an inducement to commit a crime.
But a thoughtless expression or act, without any expectation or intention
that it would produce the result, is not an inducement to commit a crime.
Thus, a chance word spoken without reflection, a wrong appreciation of
a situation, an ironical phrase, a thoughtless act, may give birth to a thought
of, or even a resolution to, crime in the mind of one for some independent
reason predisposed thereto without the one who spoke the word or performed
the act having any expectation that his suggestion would be followed or any
real intention that it produce the result. In such case, while the expression was
imprudent and the results of it grave in the extreme, the one who spoke the
word or performed the act would not be guilty of the crime committed by the
other. (U.S. vs. Indanan, supra)
Example of imprudent advice, not constituting sufficient

inducement.
In a decision by the Supreme Court of Spain rendered on the
10th of July, 1877, it was held that "a person who advised a married woman
whose husband was very stingy and treated her badly that the only thing for
her to do was to rob him, was not guilty of the crime of robbery by
inducement, for the reason that an imprudent
and ill-conceived advice is not sufficient." (Cited in the case of U.S.
vs. Indanan, supra)
528
Induction Par. 2
Art. 17
Par. 2
The person who gave the advice did not have the intention to procure
The inducement may be by acts of command, advice, or through influence, or

agreement for consideration.
The inducement and the commission of a crime whereby the inducer
becomes a principal, to the same extent and effect as if he had physically
committed the crime, may exist in acts of command, sometimes of advice, or
agreement for a consideration, or through an influence so effective that it alone
determines the commission of the crime.
The words of advice or the influence must have actually

moved the hands of the principal by direct participation.
Thus, a person who persuaded an inexperienced boy of tender age to
steal certain jewels of his grandmother was found guilty of theft by
inducement. (Viada, cited in U.S. vs. Indanan, supra) Minors under 15 years of
age are easily susceptible to the suggestions of the inducer, because usually
they have no discernment or judgment of their own. When induced to commit
a crime, the influence of the inducer is the determining cause of the
Words of command of a father may induce his son to commit a crime.

A distinction should be made between the words of command of a father
to his sons, under conditions which determine obedience, and the excited
exclamations uttered by an individual to whom obedience is not due. The
moral influence of the words of the father may determine the course of
conduct of a son in cases where the same words coming from a stranger would
make no impression. (People vs. Tamayo, 44 Phil. 38, 57)
The accused, who, exercising dominance and ascendancy over his 3-
year-old son, compelled the latter to hurl a stone at another boy, causing
injury to the latter's eye, is clearly a principal by inducement. (People vs.
Bautista, C.A., 58 O.G. 5197)
Meaning of the second requisite.

It is necessary that the inducement be the determining cause of the
commission of the crime by the principal by direct participation, that is,
529
Principals by Induction
without such inducement the crime would not have been committed. (Decision of
the Supreme Court of Spain, cited in U.S. vs. Indanan, supra)
Inducement exists if the command or advice is of such a nature that,
without its concurrence, the crime would not have materialized. (People vs.
Cruz, G.R. No. 74048, Nov. 14,1990,191 SCRA 377, 385)
Thus, if the principal by direct participation had personal reason to
commit the crime so that he would commit it just the same even if no
inducement was made by another, this second requisite does not exist.
The inducement must precede the act induced and must be so influential in
producing the criminal act that without it, the act would not have been
performed.
Thus, the price given to the principal by direct participation after the
commission of the crime, without prior promise to give a price or reward, could
not be an inducement.
If the person who actually committed the crime had a reason of his own
to commit the crime, it cannot be said that the inducement was influential in
producing the criminal act. In such case, the one charged with having induced
the commission of the crime is not criminally liable.
People vs. Castillo

(G.R. No. L-19238, July 26, 1966)
Facts: Convicted by the trial court were appellant Castillo as

principal by inducement and Marincho Castillo as principal by direct
participation. It appears that before the commission of the crime at bar,
Marincho Castillo was slapped on the face by the now deceased Juan
Vargas as a result of an altercation between them. Two months after,
while appellant, holding gun, was talking face to face with Vargas,
Marincho came from behind and hacked the latter on the head. As
Marincho was about to strike the victim a second blow, appellant said:
"You kill him." Marincho, accompanied by appellant, surrendered
himself to the authorities.
Issue: Whether appellant can be found guilty as principal by
inducement.
Art. 17
Par. 2
530
Induction Par. 2
Held: In the case of People vs. Caimbre, L-12087, Dec. 29, 1960, this
Court held that in determining whether the utterances of an accused are
sufficient to make him guilty as co-principal by inducement, it must
appear that the inducement was of such nature and was made in such a
way as to become the determining cause of the crime and that such
inducement was uttered with the intention of producing the result. In
this case, appellant was, of course, armed with a revolver while talking
with the deceased, but the firearm was not pointed at the latter. Then he
is alleged to have uttered the words "You kill him" only after his son
had already fatally boloed Vargas on the head. The inducement to
commit the crime was, therefore, no longer necessary to induce the
assailant to commit the crime. Appellant's guilt has not been established
beyond reasonable doubt.
By using words of command.

With respect to command, it must be the moving cause of the offense. In
the case at bar, the command shouted by Fidelina, "Rufino, strike him!" was
not the moving cause of the act of Rufino Gensola. The evidence shows that
Rufino would have committed the act at his own volition, even without said
words of command. (People vs.
Gensola, No. L-24491, Sept. 30, 1969, 29 SCRA 483, 490)
"Kill him and we will bury him" as an imprudent utterance said in the
excitement of the hour or in the heat of anger, and not, rather, in the nature of
a command that had to be obeyed, does not make the utterer a principal by
inducement. (People vs. Agapinay, G.R. No. 77776, June 27, 1990, 186 SCRA
812, 821)
In determining whether the utterances of an accused are sufficient to
make him guilty as co-principal by inducement, it must appear that the
inducement was of such nature and was made in such a way as to become the
determining cause of the crime and that such inducement was uttered with the
intention of producing the result. (People vs.
Castillo, No. 19238, July 26, 1966, 17 SCRA 721, 723-724)
For the utterances of an accused to make him a principal by
inducement, it is necessary that the words be of such nature and uttered in
such manner as to become the determining cause of the crime, and that the
inducement precisely was intended to serve such purpose. In other words, the
inciting words must have great dominance and influence over the person who
acts; they ought to be direct and as efficacious or powerful as physical or
moral coercion or violence itself. (People vs.
Canial, Nos. L-31042-43, Aug. 18,1972, 46 SCRA 634, 651)
531
In order that a person using words of command may be held liable as
principal under paragraph No. 2 of Art. 17, the following five requisites must
all be present:
(1) That the one uttering the words of command must have the
intention of procuring the commission of the crime.
(2) That the one who made the command must have an ascendancy or
influence over the person who acted.
Illustration of this requisite:
A was a poor, ignorant fisherman, dependent upon his uncle
B. On the other hand, B was a man of great influence in the
community. B was the local political leader of his party. In the
meeting where the plan to murder the priest was discussed, B was
the prime mover and the dominant figure. B selected A who was
present in the meeting to commit the crime and directed him to do
it. The influence exercised by B over A was so great and powerful
that the latter could not resist it. (U.S. vs. Gamao, 23 Phil. 81)
(3) That the words used must be so direct, so efficacious, so powerful
as to amount to physical or moral coercion.
Illustration of this requisite:
(a) Efficacious —
One who makes the accused believe that the person to be
killed was the one who had stolen the property of the accused, is
guilty as principal by inducement.
Note: It would seem that the material executor had a reason
to kill the victim, but it was furnished by the inductor who made
him believe that the deceased had stolen his property.
(b) Powerful — (U.S. vs. Gamao, supra).
(4) The words of command must be uttered prior to the commission of
the crime.
Thus, when the commission of the crime has already been
commenced when the words of inducement are uttered, this
requisite is lacking.
532
Induction Par. 2
Par. 2
In a decision of the Supreme Court of Spain, cited in People

vs. Kiichi Omine, 61 Phil. 609, it was held that a father who simply
said to his son who was at the time engaged in a combat with
another, "Hit him," was not responsible for the injuries inflicted
after such advice was given.
(5) The material executor of the crime has no personal reason to
commit the crime.
If the principal by direct participation has a personal reason
to commit the crime, the supposed words of inducement cannot be
the determining cause.
People vs. Kiichi Omine

(61 Phil. 611)
Facts: The witnesses for the prosecution contend that while the
injured party, Angel Pulido, was talking with Omine, Eduardo Autor
attempted to intervene, but was prevented by Hilario Pulido with a bolo,
who did not wound him except on the left thumb; that Luis Ladion and
Agapito Cortessano then held Angel Pulido by the arms, and when
Eduardo Autor approached, Omine shouted to him "pegale y matale,"
and Autor struck Angel Pulido in the breast with his bolo. Previously
Eduardo Autor had struck Angel Pulido with the fist and a blow in the
right eye.
Held: Under the circumstances of this case, even if it were
satisfactorily proven that Kiichi Omine uttered the words in question, we
are of the opinion that they would not be sufficient to make him a
principal by induction, because it does not appear that the words uttered
by Kiichi Omine caused Eduardo Autor to strike Angel Pulido. In the
first place, as we have indicated, Eduardo Autor had already other
reasons for striking Angel Pulido when Omine uttered the words of
inducement. In the second place, the words in question were not in this
particular case sufficient to cause Eduardo Autor to strike the offended
party with his bolo. Although Eduardo Autor was working under the
direction of Omine, apparently, according to the testimony of Angel
Pulido, he was being paid by him (Pulido). It does not appear that Omine
had any particular influence over Eduardo Autor.
Accused Autor was found guilty of serious physical injuries.

Accused Omine was acquitted.
533
Requisites considered in determining the liability of a person accused as
principal by inducement.
Appellant was prosecuted allegedly for uttering the words: "You had
better kill him," at the time when his co-accused was attacking his victim. The
Supreme Court stated:
"In the present case, there is nothing to show that appellant had any
reason at all to have Angel Olimpo killed (first requisite, not present). On the
other hand, even before he allegedly uttered the words attributed to him,
Demetrio Caimbre, had already boloed his victim several times (fourth
requisite, not present). To this we must add the circumstance that there is no
evidence to show that appellant had sufficient moral influence over Demetrio
Caimbre as to make the latter obey him blindly" (second requisite, not
present). Appellant was acquitted. (People vs. Caimbre, 110 Phil.
370,372)
The question whether a person present upon the occasion of a homicide
but who takes no direct part in the act can be held criminally liable for
inciting and encouraging another with expressions, such as, "go ahead," "hit
him," "there you have him," "now is the time," etc., depends upon whether
such words are spoken under conditions which give them a direct and
determinative influence upon the mind of the principal actor. (People vs.
Tamayo, 44 Phil. 38, 56-57)
Ascendancy or influence as to amount to moral coercion

is not necessary when there is conspiracy.
To consider as principal by induction one who advises or incites another
to perpetrate an offense, it is essential to show that the advisor had so great an
ascendancy or influence that his words were so efficacious and powerful as to
amount to moral coercion. Proof of such extremes is usually required to
justify such conclusion. But such proof is unnecessary where, as in this case,
the principal actor admits having been so impelled and says that he acted
pursuant to a previous
plan or conspiracy to kill and promise to condone his indebtedness. (People vs.
Ulip, 89 Phil. 629, 633)
There is collective criminal responsibility when words of inducement
were used.
Par. 2
534
Induction Par. 2
One who planned the crime committed by another is a
The persons who planned the crime committed by other persons are
guilty as authors by inducement. (People vs. Asaad, 55 Phil. 697 [Syllabus])
If the crime committed is not contemplated in the order

given, the inducement is not material and not the
determining cause thereof.
People vs. Lawas
(G.R. Nos. L-7618-20, July 20, 1955)
Facts: Accused Lawas, as head of the home guards whose duty
was to preserve peace and order among the inhabitants in Barrio Baris,
Lanao, ordered his men to fire at the Moros suspected of having killed
11 Christian residents. In the course of the melee that followed, some of
the home guards fired at the women and children who were in the
second floor of the house.
Held: While the home guards were given an order by accused
Lawas to fire at the Moros then on the ground, said order could not
imply or include an order to go up the house and massacre the innocent
and defenseless women and children. Lawas clearly did not intend that
the women and children inside the house should also be fired at. Lawas
is not guilty of murder for the killing of the women and children,
because to hold him liable as principal by induction, it is necessary (1)
that the inducement is material and precedes the commission of the
crime, and (2) that such inducement is the determining cause thereof.
Principal by inducement in falsification.

While it is true that it was the employee of the office of the treasurer
who performed the overt act of writing the false facts on the residence
certificate of the accused, it was, however, the accused who induced him to do
so by supplying him with those facts. The accused was a principal by
inducement. The employee was a mere innocent agent of the accused in the
performance of the act constituting the crime. (People vs. Po Giok To, 96 Phil.
913, 919)
In this case, the employee was not criminally liable, because he had no
knowledge of the falsity of the facts supplied by the accused.
Distinguish principal by inducement from the offender

who made proposal to commit a felony.
535
1. In both, there is an inducement to commit a crime.
2. In the first, the principal by inducement becomes liable only when
the crime is committed by the principal by direct participation; in
the second, the mere proposal to commit a felony is punishable in
treason or rebellion. The person to whom the proposal is made
should not commit the crime; otherwise, the proponent becomes a
3. In the first, the inducement involves any crime; in the second, the
proposal to be punishable must involve only
treason or rebellion.
Effects of acquittal of principal by direct participation

upon the liability of principal by inducement.
(1) Conspiracy is negatived by the acquittal of co-defendant.
(2) One cannot be held guilty of having instigated the commission of a
crime without first being shown that the crime has been actually
committed by another. (People vs. Ong
Chiat, 60 Phil. 788, 790)
But if the one charged as principal by direct participation is
acquitted because he acted without criminal intent or malice, his
acquittal is not a ground for the acquittal of the principal by
inducement. (See People vs. Po Giok To, supra)
The reason for the rule is that in exempting circumstances,
such as when the act is not voluntary because of lack of intent on
the part of the accused, there is a crime committed, only that the
accused is not a criminal. In intentional felonies, the act of a
person does not make him criminal unless his mind be criminal.
Possessor of recently stolen property is a principal.

It is clear from Section 5(j), Rule 131, of the Rules of Court, that the
possessor of a recently stolen article is considered a principal, not
536
Par. 3
Principals by Indispensable Cooperation
merely as an accessory or an accomplice, unless he proves in a satisfactory

manner that he is but an accessory or an accomplice thereto and that another
person, from whom the article came, is the one who stole it from the owner
thereof. (People vs. Javier, No. L-36509, Feb. 25, 1982, 112 SCRA 186, 190)
PAR. 3. - PRINCIPALS BY INDISPENSABLE COOPERA-

TION.
"Those who cooperate in the commission of the offense by another act

without which it would not have been accomplished."
Meaning of the term "cooperate."

To cooperate means to desire or wish in common a thing. But that
common will or purpose does not necessarily mean previous understanding, for
it can be explained or inferred from the circumstances of each case. (People vs.
Apelgido, 56 Phil. 571, 576)
Requisites:
1. Participation in the criminal resolution, that is, there is either
anterior conspiracy or unity of criminal purpose and intention
immediately before the commission of the crime charged; and
2. Cooperation in the commission of the offense by performing
another act, without which it would not have been accomplished.
First requisite:
As in Par. 1 of Art. 17, this co-delinquency in paragraph 3 also requires
participation in the criminal resolution, that is, there must be conspiracy. But
concurrence with the principal by direct participation in the purpose of the
latter is sufficient, because the cooperation is indispensable to the
accomplishment of the commission of the offense.
May there be cooperation by acts of negligence?

One who, by acts of negligence, cooperates in the commission of estafa
through falsification or malversation through falsification, Par. 3
without which negligent acts the commission of the crime could not have been
accomplished, is a co-principal. But the one who cooperated in the commission
of the crime was held guilty of the same crime through reckless imprudence.
(Samson vs. Court of Appeals, 103 Phil.
537
Par. 3 Principals by Indispensable Cooperation
277, 282-283; People vs. Rodis, 105 Phil. 1294, 1295 [Unrep.])
Second requisite:
The cooperation must be indispensable, that is, without which the
commission of the crime would not have been accomplished. If the cooperation
is not indispensable, the offender is only an accomplice. "Cooperate xxx by
another act"
The act of the principal by indispensable cooperation should be
different from the act of the principal by direct participation. The law says
"by another act," which means that it should not be the act of one who could
be classified as principal by direct participation.
Examples:
(1) Where it appears that C seized the hands of a 12-year-old girl,
dragged her by force and violence to a place behind a house where
there were some trees whence he called to his confederate, J, the
person chiefly interested in the perpetration of the crime, with
whom C must have had an agreement beforehand, delivered her
to him upon his arrival at the place, and then went away from the
scene of the crime so that J might freely consummate the
prearranged rape, as the latter did with violence and intimidation,
it was held that C cooperated in the perpetration of the crime by
acts without which its commission would not have been
accomplished. (U.S. vs. Javier, 31 Phil. 235, 239-240)
(2) R, an employee of a bank, had the duty to examine the account of

the drawer of a check, to determine whether or not the drawer of
the check had sufficient balance to his credit to require the
payment of the check, and to indorse upon the check, if it was
entitled to payment, the words "Corriente, P.O. Luciano de los
Reyes." After the check was marked in this manner, it would pass
to the cashier of the bank who, in reliance upon the indorsement,
would pay or order the same to be paid. R, in connivance with B,
and knowing that the latter had no sufficient funds in
the bank, indorsed upon a check drawn by B the words
"Corriente, P.O. Luciano de los Reyes." The cashier, relying
upon the indorsement, ordered the payment of the check, thus
enabling B to draw the amount of the check. In this case, R was a
principal by indispensable cooperation. (U.S. vs. Lim Buanco, 14
Phil. 484)
Principals by Indispensable Cooperation
In these two cases, it will be noted that the cooperation of the other
accused consisted in performing an act which is different from the act of
execution of the crime committed by the other accused.
In the case of U.S. vs. Javier, the act of cooperation is the forcible taking
of the girl to the place where the rape was committed by the other accused. In
rape, the act of execution is the sexual intercourse with the woman against her
will.
In the case of U.S. vs. Lim Buanco, the act of execution of the crime of
estafa committed by the principal by direct participation is the fraudulent
cashing of the check which resulted in the damage to the bank. The act of
cooperation of the other offender is the certification that the check was
entitled to payment.
If the cooperation of one of the accused consists in performing an act
necessary in the execution of the crime committed, he is a principal by direct
participation.
Thus, if in the commission of homicide, one of the offenders held the
victim while the other was stabbing him, the one who held the victim should
be a principal by direct participation.
But there are cases where the Supreme Court considered the accused
who held the victim while being stabbed by the other accused as a principal by
indispensable cooperation under paragraph 3 of Art. 17.
The evidence amply demonstrates that said Platon cooperated in the
execution of the deed on trial by holding the victim by the right arm while his
brother and co-defendant inflicted the wounds that produced death. The
responsibility he has incurred by virtue of such cooperation, without which
the deed could not have been committed in the way it was, is beyond doubt
that of principal. (U.S. vs. Cueva, 23 Phil. 553)
Appellants grabbed the waist of the deceased and placed his hands
around it, thereby pinning his (the deceased's) arms. It was
638
Par. 3
at this juncture when his co-accused Marcelino Mario stabbed the deceased at
his left breast above the nipple with his dagger (Exh. C). Under the
circumstances, it is clear that appellant is a principal to the commission of the
crime of murder, as he cooperated in the execution thereof by another act,
539
without which, it would not have been committed (Art. 17[3], Revised Penal
Code). (People vs. Mario,
108 Phil. 574, 577; People vs. Labis, No. L-22087, Nov. 15, 1967, 21
SCRA 875, 885)
Liability of conspirators who took turns in raping a girl.

Four persons each took turns in having sexual intercourse with a girl by
force. It was held that each of them is responsible, not only for the act of rape
committed personally by him, but also for the rape committed by the others,
because while one of them was having sexual intercourse with the girl, the
others were holding her, so that each one of them cooperated in the
consummation of the rape committed by the others by acts without which it
could not have been accomplished. Four sentences were imposed on each
accused. (People vs. Villa, 81 Phil. 193, 197; People vs. Alfaro, 91 Phil. 404,
408-409; People vs. Fernandez, G.R. No. 62116, March 22, 1990, 183 SCRA
511, 517)
To be liable as principals, the offender must fall under any

of the three concepts defined in Article 17.
In its decision of December 7,1885, the Supreme Court of Spain held
that a person who assists one who commits the crime of arson and who knows
the latter's purpose, but whose participation in the arson is not disclosed, may
not be considered as a principal because his acts were neither direct nor
absolutely necessary for the commission of the offense nor did it induce the
said commission. (2 Viada, pp. 369-370) In another decision dated December
6,1902, it said that where the accused accompanied the killer on a road where
the victim was going to pass and with open knife encouraged him (the killer)
with his presence, the former is not guilty of the crime as principal because his
participation is neither direct nor does it constitute the inducement necessary
to bring about the execution of the crime or that of cooperation as his act is
not indispensable in the commission of the crime. (Ibid., pp. 383-384)
In People vs. Ubina, 97 Phil. 515, it was held that under the
circumstances, the accused does not fall under any of the three con-
cepts denned in Article 17 of the Revised Penal Code, and may only be
considered guilty as accomplice.
Collective criminal responsibility.

There is collective criminal responsibility when the offenders are
criminally liable in the same manner and to the same extent. The penalty to be
imposed must be the same for all.
Principals by direct participation have collective criminal responsibility.
Principal by induction, except that who directly forced another to commit a
crime, and principal by direct participation have collective criminal
responsibility. Principal by indispensable cooperation has collective criminal
responsibility with the principal by direct participation.
Individual criminal responsibility.

In the absence of previous conspiracy, unity of criminal purpose and
intention immediately before the commission of the crime, or community of
criminal design, the criminal responsibility arising from different acts directed
against one and the same person is individual and not collective, and each of
the participants is liable only for the
act committed by him. (U.S. vs. Magcomot, 13 Phil. 386, 390; U.S. vs.
Abiog, 37 Phil. 137,139-140)
Where there is no pretension that there was any conspiracy between the
accused nor concerted action pursuant to a common CTiminal design between
them, each is responsible only for the consequences of his own acts. (Araneta,
Jr. vs. Court of Appeals, G.R. No. 43527, July 3,1990, 187 SCRA 123, 133)
Example of individual responsibility.

The deceased was the one who assaulted a group of three individuals
with a knife, and in the course of an incomplete self-defense, two of them
caused less serious physical injuries upon the assailant, while the third
inflicted the fatal wound. In this case, the party who inflicted the fatal wound
would be the only one responsible as principal for the crime of homicide; the
other two would be held liable only for less serious physical injuries. (Dec.
Sup. Ct. of Spain, June 2, 1874,
11 Jr. Crim. 11-14; 1 Viada, Cod. Pen., 342-343; People vs. Martinez,
42 Phil. 85, 89; People vs. Tamayo, 44 Phil. 38, 44-45)
Art. 18. Accomplices. — Accomplices are the persons who, not being
included in Article 17, cooperate in the execution of the offense by previous or
simultaneous acts.
541
Art. 18 ACCOMPLICES
Quasi-collective criminal responsibility.

Between collective criminal responsibility and individual criminal
responsibility, there is the so-called quasi-collective criminal responsibility.
In quasi-collective criminal responsibility, some of the offenders in the
crime are principals and the others are accomplices.
The participation of an accomplice presupposes the

commission of the crime by the principal by direct
participation.
The principal element of every punishable complicity consists in the
concurrence of the will of the accomplice with the will of the author of the
crime (People vs. Tamayo, 44 Phil. 49), and the accomplice cooperates by
previous or simultaneous acts in the execution of the offense by the principal.
"Not being included in Article 17."

But the participation or cooperation of the accomplice is not any one of
those mentioned in Article 17, which defines the three concepts of principals.
An accomplice does not fall under any of the three concepts denned in Art. 17.
(People vs. Ubina, 97 Phil. 515)
When there is no conspiracy between or among the defendants but they
were animated by one and the same purpose to accomplish the criminal
objective, those who cooperated by previous or simultaneous acts but cannot
be held liable as principals are accomplices.
In case of doubt as to whether principal or accomplice.

In case of doubt, the participation of the offender will be considered
that of an accomplice rather than that of a principal.
In the case of appellants Carlos and Pascual Clemente, while they
joined their brother in the pursuit of the fleeing Matnog, and in the attack on
him as he fell, yet the prosecution eyewitness was unable to assert positively
that the two managed to hit the fallen man. There being no showing of
conspiracy, and the extent of their participation in the homicide being
uncertain, they should be given the benefit of the doubt, and consequently,
they are declared to be mere accomplices in the crime. (People vs. Clemente,
G.R. No. L-23463, Sept. 28,1967, 21 SCRA 261, 270-271)
542
ACCOMPLICES Art. 18
When the participation of an accused is not disclosed, he

is only an accomplice.
A person who assists one who commits the crime of arson and who
knows the latter's purpose, but whose participation in the arson is not
disclosed, may not be considered as a principal, because his acts are neither
direct nor absolutely necessary for the commission of the offense, nor do they
induce the said commission. (2 Viada, pp. 369-370, cited in People vs. Ubina,
97 Phil. 515, 533)
In criminal cases, the participation of the accused must be established by
the prosecution by positive and competent evidence. It cannot be presumed.
An accomplice does not have previous agreement or

understanding or is not in conspiracy with the principal by
direct participation.
An accomplice does not enter into a conspiracy with the principal by
direct participation. He does not have previous agreement or understanding
with the principal to commit a crime. But he participates to a certain point in
the common criminal design. (People vs. Aplegido, 76 Phil. 571, 576)
If there is conspiracy, all the conspirators are equally liable for the crime
actually committed by any one of them. The same penalty shall be imposed on
each and every one of them.
On the other hand, the accomplice gets a penalty one degree lower than
that provided for the principal in a consummated felony.
(Art. 52)
Distinction between accomplice and conspirator.

Conspirators and accomplices have one thing in common: they know
and agree with the criminal design. Conspirators, however, know the criminal
intention because they themselves have decided upon such course of action.
Accomplices come to know about it after the principals have reached the
decision, and only then do they agree to cooperate in its execution.
Conspirators decide that a crime should be committed; accomplices merely
concur in it. Accomplices do not decide whether the crime should be
committed; they merely assent to the plan and cooperate in its
accomplishment. Conspirators are the authors of a crime; accomplices are
merely instruments who perform acts not essential to the perpetration of the
offense. (People vs. de Vera, G.R. No. 128966, 18 August 1999)
543
Art. 18 ACCOMPLICES
May a co-conspirator be held liable as an accomplice

only?
In a case, the Supreme Court held: "It is true, strictly speaking, that as
co-conspirators, Dablen and Rojas should be punished as co-principals.
However, since their participation was not absolutely indispensable to the
consummation of the murder, the rule that the court should favor the milder
form of liability may be applied to them."
In the case of People vs. Anin, No. L-39046, June 30, 1975, 64 SCRA 729,
736, it was held that if the overt acts of the accused, although done with
knowledge of the criminal intent of his co-accused was not indispensable to the
homicidal assault, the accused should be held liable only as an accomplice in
the killing of the victim.
In some exceptional situations, having community of design with the
principal does not prevent a malefactor from being regarded as an accomplice
if his role in the perpetration of the homicide or murder was, relatively
speaking, of a minor character. (People vs. Nierra, 76
O.G. 6600, No. 37, Sept. 15,1980)
Note:
1. The ruling in People vs. Nierra is inconsistent with the ruling in
People vs. Manzano, 58 SCRA 250, where it was held that
appellant's alternative contention that he should be regarded only
as an accomplice is untenable once it is postulated that he
conspired with Bernardo and Delfin to kill Jose Quintos.
2. The fact that the role of a malefactor in the perpetration of the
homicide or murder was of a minor character is of
no consequence, since having been in conspiracy with the others,
the act of one is the act of all. (People vs. Mendoza, 91 Phil. 58,
63)
3. The ruling in People vs. Nierra failed to distinguish between
"community of design" and "participation in the criminal
resolution" of two or more offenders.
The first does not necessarily mean that there is conspiracy,
although it may develop into a conspiracy; the second implies
conspiracy.
544
ACCOMPLICES Art. 18
If a malefactor entered with the others into an agreement

concerning the commission of a felony and the decision to commit
it, the malefactor and the others participated in the criminal
resolution. Such agreement and decision may be inferred from the
facts and circumstances of the case. If there was no such
agreement and decision, but, knowing the criminal design of the
others, the malefactor merely concurred in their criminal purpose,
there is only community of design. The malefactor, whose role in
the perpetration of the homicide or murder is of a minor
character, may properly be held liable as accomplice.
In order that a person may be considered an accomplice,

the following requisites must concur.
1. That there be community of design; that is, knowing the criminal
design of the principal by direct participation, he concurs with the
latter in his purpose;
2. That he cooperates in the execution of the offense by previous or
simultaneous acts, with the intention of supplying material or
moral aid in the execution of the crime in an efficacious way; and
3. That there be a relation between the acts done by the principal and
those attributed to the person charged as accomplice. (People vs.
Tamayo, 44 Phil. 38, 49)
First requisite:
Note that before there could be an accomplice, there must be a principal
by direct participation. But the principal originates the criminal design. The
accomplice merely concurs with the principal in his criminal purpose.
The cooperation that the law punishes is the assistance knowingly or
intentionally rendered, which cannot exist without previous cognizance of the
criminal act intended to be executed by the principal by direct participation.
(U.S. vs. Bello, 11 Phil. 526, 528; People vs.
Cajandab, No. L-29598, July 26, 1973, 52 SCRA 161, 166)
The cooperation which the law punishes is the assistance which is
knowingly or intentionally given and which is not possible without previous
knowledge of the criminal purpose. (People vs. Cruz, G.R. No. 74048, Nov.
14,1990,191 SCRA 377, 385, citing People vs. Bello,
11 Phil. 526 and People vs. Ortiz, 55 Phil. 993)
545
Art. 18 ACCOMPLICES
Thus, the sentry is not liable as accomplice in this case:

The sentry improperly permitted certain convicts to go out of jail,
accompanied by the corporal of the guards. The convicts committed robbery.
Was the sentry an accomplice in the crime of robbery committed by the
convicts? No. When the sentry permitted the convicts to go at large, the sentry
had no knowledge of their intention to commit any crime. (U.S. vs. Bello,
supra)
But the driver of a taxicab who, knowing that his co-accused were going
to make a hold-up, permitted them to use the taxicab driven by him in going to
a store where his said co-accused staged the hold-up, and waited for them until
after the hold-up, is an accomplice in the crime of robbery. (People vs. Lingad,
98 Phil. 5, 12)
How an accomplice acquires knowledge of the criminal design of the principal.

1. When the principal informs or tells the accomplice of the former's
criminal purpose.
Thus, when the master told his servant that he would abduct
(abduction with consent) a girl under 18 years of age and
instigated his said servant to induce the girl to leave her home for
immoral purposes, and the servant assisted in the commission of
the crime by so inducing the girl, the master was the principal by
direct participation
and the servant was an accomplice. (U.S. vs. Sotto, 9 Phil.
231, 236)
Mariano Tadeo accompanied Crispino Tangbaoan from Tayum,
Abra, to barrio Bacooc, Lagangilang, and on arriving there, Crispino
revealed to Mariano that he was going to kill one Guilay. It is likely that
out of friendship and companionship, Mariano did not leave Crispino
after Mariano learned o/*Crispino's intention. Mariano was with
Crispino when the latter killed Guilay. It was held that
Mariano was an accomplice in the crime committed by Crispino. (People
vs. Tangbaoan, 93 Phil. 686, 691)
2. When the accomplice saw the criminal acts of the principal.
In a quarrel, Ramon was choking the deceased. Then, Jose ran up
and delivered a blow with a bamboo stick on the head of the deceased.
After the blow struck by Jose, which Ramon saw, the latter continued to
choke the deceased until life was extinct. The choking by Ramon was not
546
ACCOMPLICES Art. 18
the cause of death. It was the blow delivered by Jose which caused the
death of the deceased. Held: Ramon is an accomplice. The reason is that
after the deceased had received the fatal injury, Ramon continued to hold
and choke the deceased until after life was extinct. It shows that Ramon
approved of the blow struck by Jose, thereby showing his participation in
the criminal design of Jose, and this is sufficient to make Ramon
responsible as an accomplice. (People vs. Tamayo, 44 Phil. 38, 42, 49, 54-
55)
Another case: Jovito Cagalingan stabbed the deceased after Alfredo
Cagalingan had stabbed said deceased at the back, while Victor Romina,
Jr. stabbed the same deceased while the latter was already lying prostrate
on the ground. While the acts of Jovito Cagalingan and Victor Romina,
Jr. show a community of design with the principal, Alfredo
Cagalingan, who inflicted the fatal wound, and Jovito and
Victor cooperated in hastening the victim's death, their acts were not
absolutely indispensable in the commission of the crime. A person who
assails a victim already fatally wounded by another is only regarded as
accomplice. Jovito Cagalingan and Victor Romina, Jr. are only
accomplices.
(People vs. Cagalingan, G.R. No. 79168, Aug. 3,1990, 319-
320)
Where one of the accused embraced the victim and rendered
him helpless to stop him from further hitting the other accused, the
first accused should be held liable as accomplice where he did not
stop his co-accused from further hitting the victim.
There is no showing that the attack was agreed upon between

the two accused beforehand. No motive for it was shown other than
the provocation given by the deceased; and such motive was true
only insofar as the other accused was concerned. The
circumstances indicate that if the accused embraced the deceased
and rendered him helpless, it was to stop him from further hitting
the other accused with his fists. However, even after the first knife
thrust had been delivered, he did not try to stop the other accused,
either by word or overt act. Instead, the accused continued to hold
the deceased, even forced him down on the bamboo bed with the
other accused still pressing the attack. If the initial intent of the
accused was free from guilt, it became tainted after he saw the first
knife thrust delivered. (People vs. Manansala, No. L-23514, Feb.
17,1970, 31 SCRA 401, 405)
547
Art. 18 ACCOMPLICES
The criminal design to be considered in case there is no

conspiracy or unity of criminal purpose and intention between two
or among several accused charged with a crime against persons, is
the criminal intent entertained by the accused who inflicted the
more or most serious wound on the victim. In the case of People vs.
Tamayo, supra, it was Jose who had the criminal intent, which is to
kill the deceased. Such intent to kill can be inferred from the
nature of the weapon used and the part of the body which was
injured. When a bamboo stick was used in delivering a blow on the
head, death to the victim can be expected.
Concurrence with the criminal purpose of another may make one a co-principal.
Even if only one of the offenders originated the criminal design and the
other merely concurred with him in his criminal purpose, but before the
actual commission of the crime both of them agreed and decided to commit it,
the other is not merely an accomplice. He is also a principal, because having
agreed and decided to commit a felony with another, he becomes a co-
conspirator.
No knowledge of the criminal design of the principal — not an

accomplice.
Sixto and Cosme were partners in the trade of raising and selling hogs.
Ireneo Ibanez was not directly involved in the business between the two. A
quarrel between Sixto and Cosme sprang simultaneously out of a business
discussion. Ireneo obtruded into the discussion to support the interest of his
brother Sixto. In the course of the quarrel, one of the trio mentioned the word
"fight." Whereupon Cosme started to run towards his house. Ireneo and Sixto
pursued Cosme. When they caught up with Cosme, Sixto held Cosme's neck
from behind and proceeded to tighten his grip. At this juncture, Ireneo
stabbed Cosme in such a sudden and unexpected manner that the eyewitnesses
did not even notice that Ireneo's blow carried a dagger with it. And Sixto
showed surprise when later he saw the bloodstained dagger of Ireneo, and
asked him, "What did you do?" Sixto immediately loosened his grip on
Cosme's neck.
Held: While it is true that the act of Sixto coincided with Ireneo's act of
stabbing, simultaneousness does not of itself demonstrate the concurrence of
will nor the unity of action and purpose which are the bases of the responsibility
of two or more individuals.
548
ACCOMPLICES Art. 18
There is no proof that they pursued Cosme because they had accepted a
challenge coming from him. Apparently, their intention was only to prevent
him from taking from his house a weapon with which to carry out an attack.
They were, therefore, just advancing a legitimate defense by preventing an
illegitimate aggression. Sixto's act of holding Cosme's neck from behind is no
proof of intention to kill. At that time he did not know yet what his brother's
intention was. It was not shown that Sixto knew that his brother was armed.
(People vs. Ibanez, 77 Phil. 664)
Ciriaco Limbo was an employee of the Bureau of Printing. He stole
several blank certificates used for the registration of large cattle from the
bookbinding department of that Bureau and sold them to one of his co-
defendants, Pedro Flores, for the sum of P15 each. These registration
certificates were used by Flores in effecting a sale of the two horses for the
theft of which they v^ere convicted.
Limbo took no part, direct or indirect, either in the stealing of the horses
or in selling them after they had been stolen. He had no knowledge of the
commission of the crime of theft by his co-defendants. He did not enter into
any conspiracy or arrangement with them looking to the commission of the
crime of theft of the horses. He did not receive any share of the proceeds of the
sale of the horses.
Held: Limbo was liable only for the theft of the blank certificates, but he
was neither a principal, an accomplice, nor an accessory in the crime of theft
of the horses committed by the other defendants. (U.S. vs. Flores, 25 Phil. 595,
597)
The accomplice intends by his acts, to commit or take part

in the execution of the crime.
Carina vs. People
(G.R. No. L-14752, April 20,1963)
Facts: It appears that appellant is a close friend of Dr. Jesus Lava,

a top leader of the Communists, who was his classmate in the high
school, and who later on became the godfather of appellant's first child.
Appellant's wife and children were treated successfully by Dr. Lava in
1939 and 1943 for various illnesses free of charge, and appellant
believed that his wife and children owe their lives to Dr. Lava. One night
in 1946, Dr. Lava arrived in the house of the appellant asking for
shelter. Appellant gave Lava accommodation for the night. The next
549
Art. 18 ACCOMPLICES
time that appellant heard from Dr. Lava was in May 1949, when he
received a note from the latter asking for some cigarettes, powdered
milk and canned goods. Appellant furnished in as small amounts as he
could send. It also appears that appellant, as a ranking employee of the
National City Bank of New York, helped the Huks to open accounts and
changed dollars to Philippine money for the Huks. The Court of Appeals
found him guilty as an accomplice in the crime of rebellion.
Held: There are two elements required, in accordance with the

definition of the term accomplice given in the Revised Penal Code (Art.
18), in order that a person may be considered an accomplice to a
criminal act, namely, (1) that he takes part in the execution of the crime
by previous or simultaneous acts and (2) that he intends by said acts to
commit or take part in the execution of the crime. The crime of
rebellion is committed by rising publicly and taking up arms against the
Government for any of the purposes mentioned in Article 134 of the
Revised Penal Code. Appellant did not take up arms against the
Government. He did not openly take part in the commission of the
crime of rebellion by any other act without which said crime would not
have been committed. The act of sending cigarettes and food supplies to
a famous Huk does not prove intention to help him in committing
rebellion or insurrection. Neither is the act of having dollars changed to
pesos or in helping the Huks to open accounts, by themselves show an
intent or desire to participate or help in an uprising or rebellion.
Appellant was a public relations officer of the bank of which he was an
employee and the work above indicated performed by him was a part of
his functions as an employee of the bank. Good faith is to be presumed.
No presumption of the existence of a criminal intent can arise from the
above acts which are in themselves legitimate and legal. Said acts are by
law presumed to be innocent acts while the opposite has not been
proved. In the crime of treason, any act of giving comfort or moral aid
may be criminal, but such is not the case with rebellion where the Penal
Code expressly declares that there must be a public uprising and taking
up of arms in rebellion or insurrection. Granting for the sake of
argument that appellant had the criminal intent of aiding the
communists in their unlawful designs to overthrow the Government, the
assistance thus extended may not be considered efficacious enough to
help in the successful prosecution of the crime of insurrection or
rebellion so as to make him an accomplice therein.
550
ACCOMPLICES Art. 18
The community of design need not be to commit the crime

actually committed. It is sufficient if there was a common
purpose to commit a particular crime and that the crime
actually committed was a natural or probable
consequence of the intended crime.
1. In the case of People vs. Largo, 99 Phil. 1061, it appears that
Crispin Verzo caused Amadeo Salazar and Gavino Largo to load a
time bomb in a PAL plane, which carried Fructuoso Suzara.
Verzo was the paramour of Suzara's wife. The bomb exploded
when the plane was in mid-air. The plane fell into the sea. All of its
13 passengers and crew members were killed. It was held that
Salazar and Largo were accomplices in the crime of which Crispin
Verzo was found guilty as principal, "because although they
cooperated in the execution of the criminal act with knowledge
that something illicit or forbidden was being done, there is no
evidence that they knew that the act would, or was intended to,
cause the destruction of the plane and its passengers."
2. In the case of U.S. vs. De Jesus, 2 Phil. 514, three men entered the
house of Ramon Osete for the purpose of abducting his daughter,
but instead of accomplishing the abduction, they killed Osete.
While the homicide was being perpetrated, two other men
remained in the street in front of the victim's house, standing by
the carriage which had brought them to the scene of the crime. It
was held that the two men who were on the street ready to
overcome any opposition which they might meet were accomplices.
Where the accomplices consent to aid in the commission of
forcible abduction (a crime in which the use of force is involved),
they will be responsible as such accomplices for the resulting
homicide, the commission of which might reasonably have been
regarded as a possibility in attempting to carry out the abduction,
and this even if it appears that the purpose to commit the homicide
on the part of the principal was unknown to the accomplices.
When the owner of the gun knew that it would be used to

kill a particular person, and the principal used it to kill
another person, the owner of the gun is not an accomplice
as to the killing of the other person.
551
Art. 18 ACCOMPLICES
Although Serapio got the carbine from Sulpicio, the latter cannot be
considered a principal by indispensable cooperation or an accomplice. There
is no evidence at all that Sulpicio was aware Serapio would use the rifle to kill
Casiano. Presumably, he gave the carbine to Serapio for him to shoot Rafael
only as per their agreement. Neither is there concrete proof that Sulpicio
abetted the shooting of
Casiano. Sulpicio might have been liable if after the shooting of Rafael,
Serapio returned the carbine to him but upon seeing Casiano fleeing,
immediately asked again for the carbine and Sulpicio voluntarily gave it to
him. Serapio's criminal intention then would be reasonably apparent to
Sulpicio and the latter's giving back of the rifle would constitute his assent
thereto. But such was not the case. Sulpicio, therefore, must be acquitted for
the killing of Casiano Cabizares.
(People vs. De la Cerna, G.R. No. L-20911, October 30,1967,21 SCRA
569, 586-587)
552
Art. 18 ACCOMPLICES
Second requisite:
Like the principal by cooperation under par. 3 of Art. 17, the accomplice
cooperates with the principal by direct participation. But
the cooperation of an accomplice is only necessary, not indispensable.
However, if there is conspiracy between two or among several persons,
even if the cooperation of one offender is only necessary, the latter is also a
principal by conspiracy. The nature of the cooperation
becomes immaterial.
Examples of cooperation by accomplice:
a. By previous acts.
The example of cooperation by previous act is the lending of
a dagger or pistol to the murderer, knowing the latter's criminal
purpose.
In the crime of rape, the pharmacist who, knowing the
criminal purpose of another, furnishes him the drug with which he
will put his victim to sleep in order to rape her, is also an
accomplice in the crime. (U.S. vs. Flores, 25
Phil. 595, 597-598)
b. By simultaneous acts.
The defendant who held one of the hands of the victim and
tried to take away the latter's revolver, while his co-defendant was
attacking him, is an accomplice, for he cooperated in the execution
of the crime by simultaneous acts without any previous agreement
or understanding with his co-defendant. (People vs. Escarro, 89
Phil. 520,
524)
The three persons who actually detained the offended
woman were principals in the crime of illegal detention and the
three other accused who held the victim's companion, in order to
prevent the latter from rendering any help to the victim, were
accomplices, there being no conspiracy among them. (People vs.
Crisostomo, 46 Phil. 775, 784)
Art. 18 ACCOMPLICES
552
The cooperation of an accomplice is not due to a

conspiracy.
People vs. Francisco

(G.R. No. L-6270, Feb. 28,1955)
Facts: Francisco, then Mayor of Cordon, Isabela, accompanied by

his co-accused Berganio, Badua, Dasalla and Tagasa, brought along with
them in a jeep, Ricardo Corpus, whose hands were tied at his back and
proceeded to the PC detachment where Francisco told the officer of the
day that he was leaving Corpus under the custody of the constabulary
because he was a bad man and wanted to take his life. The Corporal told
him that he could not accept Corpus, because there was no detention cell
there. Francisco and his co-accused left with Corpus. Corpus
disappeared and was not seen anymore. The evidence shows that
Francisco was the only one who had the criminal intention to kidnap
Corpus.
Held: The companions of Francisco (Berganio, Badua, Dasalla and
Tagasa) cannot be convicted as principals because of the failure of the
prosecution to prove the existence of conspiracy between them and
Francisco. But they are not entirely free from criminal liability for the
reason that they helped Francisco in bringing Corpus from the
municipal building to the PC detachment and ultimately to Barrio
Raniag. These acts constitute cooperation by "simultaneous or previous
acts" under Article 18 of the Revised Penal Code.
Once it is postulated that one of three accused had conspired with
his co-accused to kill the victim, he cannot be regarded only as an
accomplice. (People vs. Manzano, Nos. L-33643-44, July 31, 1974, 58
SCRA 250, 259)
When the acts of the accused are not indispensable in the

killing, they are merely accomplices.
As to appellants Emigdio and Alfredo, the evidence as a whole would
show that they were not entirely free from participation in the killing of the
deceased. The numerous contusions inflicted on the deceased support the
assertion that they threw stones at the deceased, but the throwing of the stones
was done during the struggle between Marciano and the deceased, after the
latter had attacked the former with the iron pipe. Absolutely no evidence
exists to prove that any stone thrown by either Emigdio or Alfredo inflicted
554
ACCOMPLICES Art. 18
any mortal injury on Felix Jugo, nor does it appear that they joined Marciano
in hitting the deceased after the latter crashed to the ground from Marciano's
blows. Thus, the form and manner of assistance by Emigdio and Alfredo do
not safely disclose that unity of purpose and design and compulsion by a
common motive that would make them co-principals with the actual slayer,
Marciano. The nature of the killing as an offshoot of a spontaneous turn of
events — not a previ-
ously conceived ambush — is seen by the use of stones by Emigdio and
Alfredo, weapons unlikely to be chosen in the cool calculation of a treacherous
ambuscade. At most, they could only be held liable as accomplices, in that they
cooperated in the execution of the offense by simultaneous acts which were not
indispensable. (People vs. Villegas, et al., 59 O.G. 7060, 7064)
The act of one, blocking people coming to the aid of the victim while
being assailed is undoubtedly one of help and cooperation to the assailants.
But, it is not indispensable to the stabbing of the victim. Hence, he is merely an
accomplice. (People vs. Resayaga, No. L-49536,
March 30, 1988, 159 SCRA 426, 432; People vs. Anin, No. L-39046, June
30,1975,64 SCRA 729, 736 [hitting the victim's companion with a piece of
wood, apparently to dissuade him from going to the succor of the victim])
One who acted as a look-out or guard and also assisted in taking the
stolen articles in the crime of robbery with homicide, absent a conspiracy.
(People vs. Parcon, Nos. L-39121-22, Dec. 19, 1981, 110 SCRA 425, 434, 435)
The accomplice merely supplies the principal with material

or moral aid without conspiracy with the latter.
Where the evidence does not prove that appellant conspired with the
malefactors, he cannot be considered as a principal. However, in going with
them, knowing their criminal intention, and in staying outside of the house
with them while the others went inside the store to rob and kill the victim, the
appellant effectively supplied the criminals with material and moral aid,
making him guilty as an accomplice. (People vs. Balili, No. L-14044, Aug.
5,1966,17 SCRA 892,898; People vs. Doctolero, G.R. No. 34386, Feb.
7,1991,193 SCRA 632, 645)
The act of one of the accused in inflicting wound upon the victim several
times with a small knife only after the latter had fallen to the ground seriously
wounded, if not already dead, is not necessary and indispensable for the
consummation of the criminal assault but merely a "show-off or expression of
sympathy or feeling of camaraderie with the other accused. For such act, the
accused should be found guilty only as accomplice. (People vs. Vicente, No. L-
26241, May 21, 1969, 28 SCRA 247, 256-257)
555
Art. 18 ACCOMPLICES
The wounds inflicted by an accomplice in crimes against

persons should not have caused the death of victim.
The person charged as an accomplice should not have inflicted a mortal
wound. (People vs. Aplegido, 76 Phil. 571) If he inflicted a mortal wound, he
becomes a principal by direct participation.
Thus, when Z cut the deceased on the neck with a bolo and afterwards R
likewise gave the deceased another blow on the neck, both wounds inflicted
being mortal, even if only R originated the intention to assault the deceased
while Z did no more than to assist the action of the initiator of the crime, the
two must be considered as co-principals and therefore both are responsible for
the crime perpetrated. (U.S. vs. Zalsos, 40 Phil. 96)
In the following cases, the other accused were held to be accomplices
only, because the wounds inflicted by them were not the cause of death:
1. People vs. Azcona, 59 Phil. 580, because the wounds inflicted by
the accused did not materially contribute to the death of the
deceased.
2. People vs. Tamayo, 56 Phil. 587, because the wound inflicted by the
accused was not of a character that would have resulted in the
death of the deceased.
3. People vs. Cortes, 55 Phil. 143, because the accused who were
armed with clubs merely struck the victim, as he fell by the fatal
blow made by the principal, without causing the victim serious
injuries.
4. People vs. Antonio, 73 Phil. 421, stoning the victim already
mortally wounded by other accused, the stoning not being the
cause of death.
People vs. Azcona
(59 Phil. 580)
Facts: Azcona induced the other accused to kill Cabili. The one
who fired the shot which killed Cabili was the principal by direct
participation and Azcona was the principal by induction. The two other
accused inflicted wounds after the fatal shot by the principal by direct
participation, when Cabili was either dead or in the throes of dissolu-
tion.
Held: The two other accused are merely accomplices.
People vs. Antonio

(73 Phil. 421)
556
ACCOMPLICES Art. 18
Facts: One of the accused attacked and wounded the deceased, inflicting
upon the latter, lacerated wounds on the forehead and on the neck. When the
deceased was already prostrated on the ground mortally wounded, accused
Faustino Divina threw stones against the wounded man, inflicting contusions
on his body. The cause of death were the wounds on the forehead and neck.
Held: Faustino Divina is only an accomplice.
In these cases, the following rules are indicated:

1. The one who had the original criminal design is the person who
committed the resulting crime.
Thus, in the Tamayo case, the son was the one who entertained the
original criminal design, because it was he who caused the death of the
victim which gave rise to the crime of homicide.
The father, who continued choking the victim after the fatal blow
was given, merely concurred in the criminal purpose of his son.
2. The accomplice, after concurring in the criminal purpose of the
principal, cooperates by previous or simultaneous acts.
When the cooperation is by simultaneous act, the accomplice takes
part while the crime is being committed by the principal by direct
participation or immediately thereafter.
Thus, in the cases mentioned, the principal had already attacked the
victim before the accomplice struck the said victim.
3. The accomplice in crimes against persons does not inflict the more or
most serious wounds.
Problem: A gave a fist blow on the face of B. Seeing what A had done to
B, C stabbed B to death. Is A an accomplice? No, because the one who had the
original criminal design was C, the wound inflicted by C being the more
serious. A could not have concurred in the criminal purpose of C, because A
was the first to strike B and A did nothing more after C had stabbed B.
The criminal responsibility of A and C will be individual, that is, each is
responsible for the act actually performed by him.
But if C stabbed B first, and as B was in a dying condition, A gave a first
blow on B's face, then A is an accomplice.
Reason: When A gave a fist blow on the face of B after the latter had
been mortally wounded by C, it shows that A concurred in the criminal
purpose of C.
557
Art. 18 ACCOMPLICES
Being present and giving moral support when a crime is

being committed will make a person responsible only as
accomplice in the crime committed.
Absent knowledge of the criminal purpose of the principal, giving aid or
encouragement, either morally or materially, in the commission of the crime,
mere presence at the scene of the crime does not make one an accomplice.
(People vs. Toling, No. L-28548, July 13,1979, 91
SCRA 382, 400)
People vs. Ubina

(97 Phil. 515)
Facts: Tomas Ubina who was defeated by Aureliano Carag for the
mayorship of Solana, Cagayan, and whom Carag had insulted,
conspired with five persons to kill Carag. These five persons brought
along Romero Pagulayan, Pascual Escote, and Pablo Binayug to the
place where Carag was killed, but the actual killing was perpetrated by
the said five persons. Their participation in the act of killing Carag was
limited to being present and staying around the premises, while the five
conspirators fired at the victim and carried out their purpose.
Held: Other than being present and, perhaps, giving moral
support, no act of Pagulayan, Escote, and Binayug may be said to
constitute a direct participation in the acts of execution. Neither did
they induce in any manner, the commission of the offense; they joined
the conspirators after the latter had decided to commit the act. Their
presence and company was not indispensable and essential to the
perpetration of the murder. They are only accomplices.
The moral aid may be through advice, encouragement or

agreement.
But the complicity which is penalized requires a certain degree of
cooperation whether moral, — through advice, encouragement, or agreement,
or material, — through external acts. In the case of accused Romana, there is
no evidence of moral or material coopera-
tion, and none of an agreement to commit the crime in question. Her mere
presence and silence, while they are simultaneous acts, do not constitute
cooperation, for it does not appear that they encouraged or nerved her co-
accused Martin to commit the crime of arson; her failure to give alarm, being
a subsequent act, does not make her liable as an accomplice. (People vs.
Silvestre and Atienza, 56 Phil. 353, 358)
558
ACCOMPLICES Art. 18
The responsibility of the accomplice is to be determined by acts of aid

and assistance, either prior to or simultaneous with the commission of the
crime, rendered knowingly for the principal therein, and not by the mere fact of
having been present at its execution, unless the object of such presence was to
encourage the principal or to apparently or really increase the odds against the
victim.
Such an intent, concurring with some overt act, must be specifically
shown by the evidence of the prosecution. (Decision of Supreme Court of
Spain, June 25,1886, cited in U.S. vs. Guevara, 2 Phil. 528, 532)
But the advice, encouragement or agreement should not be the
determining cause of the commission of the crime by the principal by direct
participation; otherwise, the one who gave the advice or encouragement or the
one who entered into the agreement would be a principal by inducement.
When the accomplice gives an advice_or encouragement to, or enters into an
agreement with the principal, he knows the principal is going to commit the
crime.
Third requisite:
There must be a relation between the criminal act of the

principal and the act of the one charged as accomplice.
It is not enough that a person entertains an identical criminal design as
that of the principal. There must be a relation between the criminal act of the
principal by direct participation and that of the person charged as accomplice.
People vs. De la Cruz

(61 Phil. 162)
Facts: A young lady was attacked by Reyes, her suitor, by
throwing her on the ground and passing his hand over her body. When
they learned of the incident, the parents of both parties agreed that the
father of Reyes would punish him. In the meantime, the brother of the
young lady, not knowing of such agreement, armed himself with a pistol
and looked for Reyes to avenge the honor of his sister. In the house of
the young lady, where Reyes was about to be punished, she immediately
stabbed him on the chest with a pen knife. At the time, the brother of the
young lady was under the house, again with his pistol, waiting for Reyes
to come down in order to kill him. For the death of Reyes, the brother of
the young lady was accused as accomplice.
Held: There can be no liability by reason of complicity if there is
no relation between the criminal act of the principal by direct
559
Art. 18 ACCOMPLICES
participation and that of the person charged as accomplice. The most

that could be said against the brother of the young lady, is that he
intended to kill the deceased but, even then, he did nothing in connection
with his sister's act of attacking and killing said deceased.
An accomplice may be liable for a crime different from that

which the principal committed.
1. A attacked B with treachery, the attack being sudden and
unexpected. When B was mortally wounded, C, father of A,
appeared, placed himself upon B's abdomen, and held his hands.
Later, D also appeared and held both knees of B, C and D made it
possible for A to search the body of B for the latter's revolver. It
was not shown that C and D knew of the manner A attacked B.
What they knew was that A had unlawfully attacked and
wounded B. It was held that A was guilty of murder qualified by
treachery (Art. 248) and C and D were guilty as accomplices in
the crime of homicide. (Art. 249) Art. 62, paragraph 4, provides
that the circumstances which consist in the material execution of
the act or in the means employed to accomplish it (among them
being treachery), shall serve to aggravate the liability (or qualify
the crime) only of those persons who had knowledge of them at
the time of the execution of the
560
ACCOMPLICES Art. 18
act or their cooperation therein. (See People vs. Babiera, 52 Phil.
98)
2. A, a NARIC guard, asked C to help him (A) remove from the
NARIC warehouse some sacks of rice belonging to the NARIC,
and sold them to D.
The qualifying circumstance of grave abuse of confidence
which in the case of A makes the crime qualified theft (Art. 310)
does not apply to C, who was not in confidential relations with the
NARIC. C is guilty as accomplice in the commission of the crime
of simple theft (Art. 308) only. (See
People vs. Valdellon, 46 Phil. 245, 252)
Where the appellants may be said to have joined only in the
plan to rob, by providing the banca used in the robbery, which
makes them accomplices, they are not liable for the killing
committed by the principals in the course of the robbery. Having
been left in the banca, they could not have tried to prevent the
killing, as is required of one seeking relief from liability for
assaults committed during
the robbery. (People vs. Doble, No. L-30028, May 31,1982, 114
SCRA 131, 148, 149)
Art. 62, par. 3, provides that aggravating circumstances
which arise from the private relations of the offender with the
offended party shall aggravate the liability (or qualify the crime)
of the principals, accomplices and accessories as to whom such
circumstances are attendant.
Distinguish accomplice from principal in general.

An accomplice is one who does not take a direct part in the commission
of the act, who does not force or induce others to commit it, or who does not
cooperate in the commission of the crime by another act without which it
would not have been accomplished, yet cooperates in the execution of the act
by previous or simultaneous actions. (People vs. Silvestre, 56 Phil. 353, 356)
Distinguish an accomplice from a principal by

cooperation.
The participation of the offender in a case of complicity, although
necessary, is not indispensable as in the case of a co-principal by cooperation.
For example, if one lends his dagger or pistol to a murderer fully knowing
that the latter will commit murder, he undoubtedly cooperates in the
561
ACCOMPLICES
commission of the crime of murder with a previous act which, however,
cannot be considered indispensable for the reason that even though the
offender did not lend his dagger or pistol, the murderer could have obtained it
somewhere else or from some other person. In such a case, the participation of
the offender is that of an accomplice by virtue of the provisions of this article.
(See 1 Viada, Cod. Pen., 370)
Where the accused struck the deceased on the forehead with a piece of
wood, rendering the latter unconscious, thereby facilitating the subsequent
slaying of the deceased by the other accused, the former must be deemed
responsible as an accomplice in the killing. (People vs. Templonuevo, 106 Phil.
1003, 1007)
Note: The accused who struck the deceased on the forehead must have
knowledge of the intention of the other accused to kill the
deceased before he struck the deceased. If he had no such
knowledge, he is not an accomplice in the killing of the
deceased. He is principal by direct participation in the crime he
personally committed, say, physical injuries.
While the act of holding the victim by Romeo was one of help and
cooperation, it is not indispensable for the commission of the offense by the
others who boloed the victim, as the hacking could have been committed just
the same without his holding the victim. Romeo is only an accomplice. (People
vs. Geronimo, No. L-35700, Oct. 15,1973,
53 SCRA 246, 259)
Note: If there was conspiracy between Romeo and the others, he would
be liable as principal, notwithstanding the fact that his
cooperation was not indispensable.
Distinguish an accomplice from a principal by direct

participation.
(1) In both, there is community of criminal design.
By the overwhelming weight of authority, the same
community of purpose and intention is necessary to jusArt. 18
tify the conviction of an accused person in the character of

accomplice that is necessary to sustain conviction in the character
of principal. (People vs. Tamayo, 44 Phil. 38, 49)
562
ACCOMPLICES Art. 18
We must bear in mind that unity of purpose and of action
must exist, not only among the principals themselves, but also
between the principals and the accomplices, and that what
distinguishes the latter from the former is that the accomplices
cooperate in the execution of the offense by previous or
simultaneous acts other than those which would characterize them
as principals, pursuant to Article
17 of the Revised Penal Code. (People vs. Manalac, C.A.,
46 O.G. I l l )
The person who entertains the owner of a house while
robbers are assaulting it, so that he will not return thereto until
after the robbery has been consummated, is an accomplice in the
crime, inasmuch as he cooperated therein by simultaneous act,
although not an indispensable one for its accomplishment. (I Viada
370, cited in U.S. vs.
Diris, 133, 136)
This case implies that the owner of the house was entertained
at some distance from the place where the robbery was committed.
If that person was in the same
place, say under the house, talking with the owner of the house in
order to distract his attention from what was going on upstairs, he
was a principal by direct participation, serving as guard to warn
his companions in case there should arise any necessity for giving
an alarm.
(2) As to the acts performed, there is no clear-cut distinction between
the acts of the accomplice and those of the principal by direct
participation. That is why, in case of doubt, it shall be resolved in
favor of lesser responsibility, that is, that of mere accomplice.
(3) Between or among principals liable for the same offense, there
must be conspiracy; but between the principals and the
accomplices, there is no conspiracy. (People vs. Aplegido,
76 Phil. 571, 575)
563
Art. 19 ACCESSORIES
Art. 19
Art. 19. Accessories. — Accessories are those who, having knowledge of

the commission of the crime, and without having participated therein, either
as principals or accomplices, take part subsequent to its commission in any of
the following manners:
1. By profiting themselves or assisting the offender to profit by the

effects of the crime;
2. By concealing or destroying the body of the crime or the effects or
instruments thereof, in order to prevent its discovery;
3. By harboring, concealing, or assisting in the escape of the principal of
the crime, provided the accessory acts with abuse of his public functions or w
h e n e v e r the author of the crime is guilty of treason, parricide, murder, or
an attempt to take the life of the Chief Executive, or is k n o w n to be
habitually guilty of some other crime.
An accessory does not participate in the criminal design, nor cooperate

in the commission of the felony, but, with knowledge of the commission of the
crime, he subsequently takes part in three ways: (a) by profiting from the
effects of the crime; (b) by concealing the body, effects or instruments of the
crime in order to prevent its discovery; and (c) by assisting in the escape or
concealment of the principal of the crime, provided he acts with abuse of his
public functions or the principal is guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or is known to be habitually
guilty of
some other crime. (People vs. Verzola, No. L-35022, Dec. 21, 1977, 80 SCRA
600, 608)
1. "Having knowledge."
An accessory must have knowledge of the commission of the
crime, and having that knowledge, he took part subsequent to its
commission.
In the absence of positive proof, direct or circumstantial, of his
knowledge that the goods were of illegal origin or fraudulently acquired
by the vendors at the time of the transaction, a customer who
564
ACCESSORIES
purchases such goods cannot be held criminally responsible as
accessory. (People vs. Labrador,
C.A., 36 O.G. 166)
Thus, if A buys a stolen property, not knowing that it was stolen,
he is not liable.
Mere possession of stolen property does not make the

accused an accessory where the thief was already
convicted.
The legal principle that unexplained possession of stolen articles is
sufficient evidence to convict one of theft is not applicable where the principal
or author of the robbery has already been convicted and where there is no
proof that the alleged accessory knew of the commission of the crime and that
he profited himself by its proceeds. It is within the realm of possibilities that
he received it honestly, in the legal course of transactions without knowing
that it was stolen. (People vs. Racimo, C.A., 40 O.G. 279)
Note: If there has been no one convicted as the thief, the possessor
should be prosecuted as principal of the crime of theft.
Entertaining suspicion that a crime has been committed is

not enough.
Entertaining suspicion that the carabao was a stolen object, is not of
itself proof of knowledge that a crime has been committed. "Knowledge" and
"suspicion" are not synonymous terms. "The word 'suspicion' is defined as
being the imagination of the existence of something without proof, or upon
very slight evidence, or upon no evidence at all." (Cook vs. Singer, 32 P. 2d.
430, cited in Words and Phrases, Vol. 40, p. 929)
If the accused had entertained some suspicion, it was only at that time
when the truck driven by him with its load of a carabao had already left the
camarin and on the way to Lantangan. But his suspicion was merely the
product of his imagination founded on a fact that of itself, and under ordinary
circumstances, will not give rise to a belief that the carabao was stolen,
because transporting at nighttime is not an uncommon happening in everyday
life, especially Art. 19
when the trip was done in obedience to an order of his superior which he
cannot ignore or disobey. The suspicion of Batuampo, under the
circumstances, was but a flickering thought based on nothing more than the
565
Art. 19 ACCESSORIES
product of imagination. Upon the foregoing facts, we are of the opinion, and
so hold, that the appellant is entitled to acquittal. (People vs. Batuampo, C.A.,
62 O.G. 6269-6270)
Knowledge of the commission of crime may be acquired

subsequent to the acquisition of stolen property.
U.S. vs. Montana
(3 Phil. 110)
Facts: The robbers took and carried away carabaos belonging to
another. These animals were found in the possession of A who acquired
them without knowing that they had been illegally taken. When the
owners of the carabaos informed A that they were illegally deprived of
their animals, A demanded the payment of one-half of what he had paid
for them. The owners promised to come back with the money. When the
owners came back, A informed them that he had returned the animals
to the persons from whom he had bought them.
Held: To declare the accused guilty as accessory, it is not
necessary that he should have acquired the property, knowing at that
time that it had been stolen. It is sufficient that after acquiring that
knowledge, he concealed or disposed of the property, thereby depriving
the owner thereof.
Knowledge of the commission of crime may be

established by circumstantial evidence.
When a person knew that his co-accused had no legitimate business;
that some of the goods were taken to him as early as 5:00 to 6:00 o'clock in the
morning; and that said co-accused was neither a barber nor the owner of a
sari-sari store such as would induce in him a rational belief that the latter's
possession of said goods (among them barber's utensils) was legitimate; the
conclusion is that he had knowledge of their illegal source. (People vs. Dalena,
CA-G.R. Nos.
11387-R and 11388-R, Oct. 25, 1954)
2. "Commission of the crime."

The crime committed by the principal must be proved beyond
reasonable doubt.
Thus, where it is doubtful whether a woman killed her husband
maliciously, as it is possible that she might have acted in self-defense,
the fact that their servant took part in the burial of the deceased in a
566
ACCESSORIES
secluded place would not make the servant an accessory in parricide,
an offense which was not conclusively
proven. (See People vs. Pardito, G.R. No. L-3234, March 1,1952
[Unrep.])
3. "Without having participated therein either as principals or
accomplices."
A attacked and fatally wounded B. Seeing B fall to the ground as a
result of the fatal blow made by A, C and D hit B with a piece of wood
each was carrying. When B died, A, C, and D buried the corpse to
prevent the authorities from discovering the crime.
Can A be held liable as an accessory? No, because he already
participated as principal. Are C and D accessories? No, because they
already participated as accomplices.
4. "Take part subsequent to its commission."

The accessory takes part after the crime has been committed. Note
that paragraphs Nos. 1, 2 and 3 of Art. 19, which describe the different
acts of the accessory, refer to those acts performed after the crime had
been committed.
Specific acts of accessories.

1. By profiting themselves or assisting the offender to profit by the effects of the
crime.
The crime committed by the principal under this paragraph may
be any crime, provided it is not a light felony.
a. By profiting themselves by the effects of the crime.
Examples:
A person who received any property from another, and used
it, knowing that the same had been stolen, is guilty of the crime of
theft as an accessory. (People vs. Tanchoco, 76 Phil. 463, 467)
In murder, one who shared in the reward given for the
commission of the crime (U.S. vs. Empainado, 9 Phil. 613) profited
by the effects of the crime.
567
Art. 19 ACCESSORIES
ACCESSORIES Art. 19
But one who received f*200 from the owner of a stolen jeep, as a
reward for locating it in the possession of someone who had bought it, is
not an accessory, because the amount of P200 was in the nature of a
reward and not fruits or effects of the crime. (People vs. Yatco, C.A., 51
O.G. 260)
The accessory should not take the property without the consent of the
principal.
In profiting by the effects of the crime, the accessory must receive
the property from the principal. He should not take it without the consent
of the principal. If he took it without the consent of the principal, he is
not an accessory but a principal in the crime of theft. Theft may be
committed by taking with intent to gain, personal property from one who
stole it, without the latter's consent.
When is profiting by the effects of the crime punished as the act of

principal, and not the act of accessory?
When a person knowingly acquired or received property taken by
the brigands. (Art. 307, Revised Penal
Code)
b. Assisting the offender to profit by the effects of the crime.

Examples:
A person who receives any property from another, which he knows
to have been stolen, and sells the same for the thief to whom he gives the
proceeds of the sale, is guilty of the crime of theft, as an accessory. (U.S.
vs. Galanco, 11
Phil. 575)
In kidnapping for ransom, those who acted as runners or couriers
in obtaining the ransom money (People vs. Magsino, G.R. No. L-3649,
Jan. 29, 1954) assisted the offenders to profit by the effects of the crime.
One who takes part in cattle rustling by profiting himself by its
effects with knowledge of the crime is only
an accessory after the fact. (Taer vs. Court of Appeals, G.R.
No. 85204, June 18, 1990, 186 SCRA 598, 604-605)
567
An accessory should not be in conspiracy with the principal.
568
A conspired with others to steal certain goods in the
customhouse. A agreed to pay, as in fact he paid them, a
substantial sum of money upon delivery of the stolen goods in his
warehouse from the wagons on which his coconspirators loaded
the goods at the customhouse. It was held that A was guilty of the
crime of theft as a principal and not merely as an accessory. (U.S.
vs. Tan Tiap Co., 35 Phil. 611)
2. By concealing or destroying the body of the crime to prevent its discovery.

The crime committed by the principal under this paragraph may
be any crime, provided it is not a light felony.
"Body of the crime."

Same as "corpus delicti."
It means that a specific offense was in fact committed by someone.
(People vs. Marquez, 43 O.G. No. 5)
Examples of concealing the body of the crime.

a. Those who assist in the burial of the victim of a homicide to
prevent the discovery of the crime incur the responsibilities of
accessories. (U.S. vs. Leal, 1 Phil. 118)
In homicide or murder, it is necessary to prove that a
particular person is the victim. The victim must be properly
identified. Thus, if the body of the victim cannot be found, the
crime cannot be proved. Hence, the concealing of the body of the
victim is in effect concealing the crime itself.
b. Furnishing the means to make it appear that the deceased was
armed, by placing a weapon in his hand when already dead, and
that it was necessary to kill him on account of his resistance to the
constabulary men; or making it appear that the deceased who had
been arrested ran away. (U.S. vs. Cuison, 20 Phil. 433; People vs.
Saladino, G.R.
No. L-11893, May 23, 1958)
ACCESSORIES Art. 19
This example may serve to illustrate "destroying the body of the crime."
The mere act of a person of carrying the cadaver of one unlawfully
killed, when it was buried to prevent the discovery of the crime, is sufficient to
make him responsible as an accessory under paragraph 2 of Art. 19. (People
vs. Galleto, 78 Phil. 820)
Art. 19 ACCESSORIES
There must be an attempt to hide the body of the crime.
With respect to appellant A.R., he should be acquitted. According to his
affidavit — the only evidence against him — he was merely ordered to board
the jeepney, not knowing, not even suspecting, the reason or purpose of the
ride. He did not take part in the killing, neither did he profit by it, nor try to
conceal the same from the authorities. It is true that he helped his companions
in removing the two dead bodies from the jeepney and throwing them into the
ditch; but there was no attempt to bury or hide said bodies, not even cover
them with grass or bushes. In fact, the evident design and plan of the culprits
as unfolded during the trial was not to hide the bodies, but to just leave them
on the roadside so as to make it appear that the two victims were killed by
Huks in an encounter with the Government forces. (People vs. De la Cruz, 100
Phil. 624, 633)
Concealing or destroying the effects or instruments of the crime to prevent its

discovery.
A person who received personal property knowing that it had been
stolen, for the purpose of concealing the same, as in fact he concealed it, is
guilty of the crime of theft as an accessory. (U.S. vs. Villaluz, 32 Phil. 376)
He is guilty of the crime of homicide as an accessory, under paragraph
No. 2 of Art. 19, who received a pistol or a knife, knowing that it had been
used in killing the deceased, and concealed it.
The stolen property is the effect of the crime. The pistol or knife is the
instrument of the crime.
A person who destroyed the ladder which he knew had been used by
another in climbing the wall of the house where
569
the latter had committed robbery, is guilty of the same crime as

accessory. The ladder is an instrument of the crime.
"To prevent its discovery."

The pronoun "its" refers to the word "crime." In the case of U.S.
vs. Villaluz, 32 Phil. 376, 380, the Supreme Court stated: "Such facts
also show that her concealment of said articles was for the purpose of
preventing and defeating the discovery of the crime."
Note that the concealing or destroying of the body of the crime,
the effects or instruments thereof, must be done in order to prevent the
discovery of the crime. Note also that what is concealed is the body of
the crime, the effects or instruments thereof, not the principal who
committed the crime. If the principal is concealed, paragraph 3 of Art.
19 applies.
570
Simply assisting the principal in bringing the body down the house
to the foot of the stairs and leaving said body for anyone to see, cannot
be classified as an attempt to conceal or destroy the body of the crime.
The concealing or destroying of the body of the crime, the effects or
instruments thereof, must be done to prevent the discovery of the crime.
In this case, the body was left at the foot of the stairs at a place where it
was easily visible to the public. (People vs. Verzola, No. L-35022, Dec.
21, 1977, 80 SCRA 600, 609)
Is a person who merely received a property knowing

it to be stolen liable as an accessory?
In People vs. Tanchoco, 76 Phil. 463, it was held: "A person who receives
any property from another, knowing that the same had been stolen, is guilty of
the crime of theft, as an accessory after the fact (encubridor). A person who
receives any property from another, which he knows to have been stolen, for
the purpose of selling the same and to share in the proceeds of the sale, is
guilty of the crime of theft, as an accessory after the fact. (U.S. vs. Galanco, 11
Phil. 575) In the same manner that a person who receives stolen property for
the purpose of concealing the same, is likewise guilty of the crime of theft as
an accessory after the fact." (U.S. vs. Villaluz, 32 Phil. 376)
Art. 19 ACCESSORIES
Note: Is it sufficient that the purpose to profit exist? Is it sufficient that

there is a purpose to conceal?
3. By harboring, concealing or assisting in the escape of the principal of the

crime.
Two classes of accessories are contemplated in

paragraph 3 of Article 19.
a. Public officers who harbor, conceal or assist in the escape of the principal
of any crime (not light felony) with abuse of his public
functions.
Requisites:
(1) The accessory is a public officer.
(2) He harbors, conceals, or assists in the escape of the principal.
(3) The public officer acts with abuse of his public functions.
(4) The crime committed by the principal is any crime, provided it is
not a light felony.
b. Private persons who harbor, conceal or assist in the escape of the author
of the crime — guilty of treason, parricide, murder, or an attempt against
the life of the President, or who is known to be habitually guilty of some
other crime.
Requisites:
(1) The accessory is a private person.

(2) He harbors, conceals or assists in the escape of the author of the
crime.
(3) The crime committed by the principal is either: (a) treason, (b)
parricide, (c) murder, (d) an attempt against the life of the
President, or (e) that the principal is known to be habitually guilty
of some other crime.
"Habitually guilty of some other crime."

Thus, if a person was previously punished three times for less
serious physical injuries and now commits estafa, the one who helps in
572
ACCESSORIES Art. 19
his escape is liable as an accessory although the accessory is a private

individual.
But the accessory must have knowledge of the principal being
habitually guilty of some other crime, because the law says "or is
known to be habitually guilty of some other crime."
A mayor who refused to prosecute offender is

accessory.
Abusing his public office, the president of the town of Cabiao refused to
prosecute the crime of homicide and thus made it possible for the principal
offender to escape. He refused to make an investigation of the serious
occurrence, of which complaint was made to him. The municipal president was
found guilty as accessory. (U.S. vs. Yacat, 1 Phil. 443)
One who kept silent with regard to the crime he

witnessed is not an accessory.
A person who saw the commission of a crime, say murder, by another
whom he knew, kept silent with regard to it, and did not report it to any of the
authorities is not liable even as an accessory. (U.S. vs. Caballeros, 4 Phil. 350;
U.S. vs. Callapag, 21 Phil. 262)
The reason for this ruling is that such an omission is not one of the
different acts enumerated in Art. 19 of the Code. Such omission is not
harboring, or concealing or assisting in the escape of the principal. (Art. 19,
par. 3)
But if that person went to the authorities and volunteered false
information which tended affirmatively to deceive the prosecuting authorities
and thus to prevent the detection of the guilty parties and to aid them in
escaping discovery and arrest, he is liable as an accessory. (U.S. vs. Romulo, 15
Phil. 408, 415)
Where the accused was present when her husband was shot, but she did
not only enjoin her daughter not to reveal to anyone what the latter knew, but
also warned her daughter that she would kill her if she would tell it to
somebody, and when the peace officers who repaired to their house to
investigate what had happened asked her, she (the accused) claimed that she
had no suspects in mind, the accused thereby concealed or assisted in the
escape of the principal in the crime, which made her liable as an accessory,
573
Art. 19 ACCESSORIES
under paragraph 3 of Article 19 of the Revised Penal Code, to the crime of

murder.
(People vs. Talingdan, No. L-32126, July 6, 1978, 84 SCRA 19, 35)
Accessories' liability is subordinate and subsequent.

Where the alleged incendiary was acquitted, it is neither proper nor
possible to convict the defendant as accessory. The responsibility of the
accessory is subordinate to that of the principal in a crime, because the
accessory's participation therein is subsequent to its commission, and his guilt
is directly related to that of the principal delinquent in the punishable act. If
then the facts alleged are not proven in the prosecution instituted, or do not
constitute a crime, no legal grounds exist for convicting a defendant as an
accessory after the fact for a crime not perpetrated. (U.S. vs. Mendoza, 23
Phil. 194, 196)
When is conviction of accessory possible, even if

principal is acquitted?
Conviction of an accessory is possible notwithstanding the acquittal of
the principal, if the crime was in fact committed, but the principal was not
held criminally liable, because of an exempting circumstance (Art. 12), such as
insanity or minority. In exempting circumstances, there is a crime committed.
Hence, there is a basis for convicting the accessory.
Thus, if a minor, eight years old, stole a ring worth P500.00 and
B, knowing that it has been stolen, buys it for P200.00, B is liable as accessory
in the crime of theft, even if the principal (the minor) is exempt from criminal
liability. (See U.S. vs. Villaluz, 32 Phil. 376)
Apprehension and conviction of the principal is not

necessary for the accessory to be held criminally
liable.
Even if the principal is still unknown or at large, the accessory may be
held responsible provided the requisites prescribed by law for the existence of
the crime are present and that someone committed it.
May the trial of an accessory proceed without awaiting the result of
the separate charge against the principal? The answer is in the affirmative.
The corresponding responsibilities of the principal, accomplice and
accessory are distinct from each other. As long as the commission of the
574
ACCESSORIES Art. 19
offense can be duly established in evidence, the determination of the liability

of the accomplice or accessory can proceed independently of that of the
principal. (Vino vs. People, G.R. No. 84163, Oct. 19, 1989, 178 SCRA 626,
632)
When the alleged principal is acquitted, may the

accessory be convicted?
In United States vs. Villaluz, supra, a case involving the crime of theft, it
was ruled that notwithstanding the acquittal of the principal due to the
exempting circumstance of minority or insanity, the accessory may nevertheless
be convicted if the crime was in fact established.
Corollary to this is United States vs. Mendoza, supra, where it was held in
an arson case that the acquittal of the principal must likewise result in the
acquittal of the accessory where it was shown that no crime was committed
inasmuch as the fire was the result of an accident. Hence, there was no basis
for the conviction of the accessory.
Where the commission of the crime and the responsibility of the accused
as an accessory are established, the accessory can be convicted,
notwithstanding the acquittal of the principal. (Vino vs.
People, supra, at 632-634)
People vs. Billon

(C.A., 48 O.G. 1391)
Facts: Felicisimo Billon alias Guillermo Billon was prosecuted,

together with Gorgonio Advincula who was not brought to trial for being
at large, in the Court of First Instance of Pangasinan for murder. Billon
positively testified that it was Advincula who shot De Castro to death. On
the other hand, he admitted that he had harbored him at his house on
861 B. Hidalgo, Manila, after the commission of the crime, which was
clearly one of murder. Billon also admitted that he assisted in the escape
of Advincula. Billon was found guilty as accessory instead of as principal.
On appeal, he contended that he could not be declared as an accessory
because Advincula, the principal, was not yet tried and found guilty.
Held: Art. 19, paragraph 3, is stated in Spanish as follows:
"3. Albergando, ocultando o proporcionando en fuga al autor del
delito, cuando el encubridor lo hace con abuso de funciones publicas o
575
Art. 19 ACCESSORIES
cuando aquel lofuere de traicion, parricidio, asesinato, atentado contra la vida del
Jefe Ejecutivo, o reo conocidamente habitual de otro delito."
(las cursivas nuestras.)
From the wordings of the above quoted legal provision, it is not

necessary that the principal should be first declared guilty before the accessory can
be made liable as such. Apparently, the opposite is the rule, as contended by
the appellant's counsel, following the English text of the law.
"3. By harboring, concealing, or assisting in the escape of the
principal of the crime, provided the accessory acts with abuse of
his public functions or whenever the author of the crime is guilty of
treason, parricide, murder, or an attempt to take the life of the
Chief Executive, or is known to be habitually guilty of some other
crime." (Italics ours.)
However, the Spanish text should prevail.
The accused cannot be held liable as accessory under

paragraph 3 of Art. 19, if the principal charged with murder
died before trial, because had he been alive he might have
been
found guilty only of homicide.
We note at once that a person may be held guilty as an accessory after
the fact under pars. 1 and 2 of Article 19, even if the principal of the crime is
unknown or it cannot be proven who committed the crime, provided that the
accessory after the fact knew of the perpetration of the offense, because under
the phraseology of the said paragraphs, it seems to us clear enough that the
prosecution prove that a crime was committed without being put to prove who
committed it, and that the person sought to be held guilty as accessory after the
fact profited from the effects thereof or concealed the body of the crime or the
instruments used in the commission thereof in order to impede its discovery.
Thus, a person, knowing the illegal source of a thing that is stolen, benefits
therefrom, is guilty as an accessory after the fact, even if the author of the theft
has not been discovered. But Barlam is here charged with having assisted in
the escape of Balisi, not with having profited from, or having concealed the
effects or instruments of the crime. The principle we have just stated cannot
apply to a person who is sought to be implicated as an accessory after the fact
because he concealed the principal of the crime or assisted him in escaping
when the said principal is guilty of treason, parricide, murder, an attempt on
the life of the Chief Executive or is otherwise habitually known to have
committed another crime. And we draw this conclusion from the very wording
576
ACCESSORIES Art. 19
of the law itself. It is our view that not only must the crime be proven, but as well
the identity of the author thereofmust be established, and both these in a full-
dress criminal trial. In this case before us, Balisi was not tried, nor was final
judgment rendered against him, because of his death prior to arraignment.
(People vs. Barlam, C.A., 59 O.G. 2474)
Reasoning in the Barlam case refuted.

As far as the accused who actually stands trial and is found guilty as
accessory is concerned, he is given a full hearing. Whether the principal is
brought to court or is at-large, the prosecution has to prove the commission of
the crime charged, with the same quantum of evidence, and the participation
in it of all the persons named in the information. The accessory is accorded the
opportunity to refute the evidence of the prosecution establishing the crime
and the participation of the alleged principal. Upon the evidence adduced by
both parties and for purposes of conviction of the accessory, the court can
make a finding as to whether the crime charged has been established and the
other accused is the principal thereof, without pronouncing judgment on him.
(People vs. Inovero, 65 O.G. [March 31, 1969 issue] 3168)
The arraignment, trial and conviction of accessory

during the pendency of a separate case against the
principal are null and void.
The arraignment, trial and conviction of an accessory after the fact
without the principal of the crime having first been tried and convicted in the
separate case filed and pending at the time of the arraignment, trial and
decision of the case against the accessory, is not proper and violates the legal
system of procedural orderliness.
In view of all the foregoing, the arraignment, trial and conviction of the
appellant Gaw Lin are hereby declared null and void. The case is remanded to
the court below so that, in the event the defendants in Criminal Case No. 68874
are tried and convicted by final judgment of the crime of qualified theft, the
defendant Gaw Lin in Criminal Case No. 71278, who allegedly purchased the
stolen goods with knowledge of the commission of the crime, may be arraigned
and tried, and the proper judgment rendered by the trial court. (People vs.
Gaw Lin alias Juan Gaulin, C.A., 63 O.G. 3821, 3824)
577
ANTI-FENCING LAW OF 1979
But when the principal is not yet apprehended, the

accessory may be prosecuted and convicted.
In a case, the accused was prosecuted as accessory to the crime of
qualified theft by profiting himself and/or assisting the offender to profit by the
effects of the crime, under par. 1 of Art. 19.
It may be asked whether or not appellant may be legally convicted as
accessory after the fact of the crime of qualified theft, when up to now the
principal has not yet been prosecuted for failure to identify and apprehend
him. We believe that the answer should be in the affirmative. The crime of
qualified theft has been proved; the nonprosecution of the principal for the
reason that his identity has not as yet been discovered, cannot serve as basis to
free appellant from the liability incurred by him as an accessory after the fact.
(People vs. Ramos, C.A., 62 O.G. 6862)
For one to be found guilty and punished as an accessory, it is not
necessary that there be a principal duly convicted (Cuello Calon, Codigo
Penal, Tomo I, pages 515-516, Octava Edicion). Neither the letter nor the
spirit of the law requires that the principal be convicted before one may be
punished as an accessory. As long as the corpus delicti is proved and the
accessory's participation as such shown, he can be held criminally responsible
and meted out the corresponding penalty. (Inovero vs. Coronel, C.A., 65 O.G.
3160)
Can there be an accessory even after the principal

was convicted?
Yes, by presenting oneself to serve out the sentence in lieu of the real
culprit. But the crime committed by the real culprit must be treason,
parricide, murder, or an attempt to take the life of the President, that he is
known to be habitually guilty of some other crime, because this is possible
only when the accessory is a private individual.
Heavy penalties for accessories in robbery and theft.

PRESIDENTIAL DECREE NO. 1612
SECTION 1. Title. — This decree shall be known as the
AntiFencing Law.
SEC. 2. Definition of Terms. — The following terms shall mean as follows:
a. "Fencing" is the act of any person who, with intent to gain for
himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or
dispose of, or shall buy and sell, or in any other manner deal in any article,
item, object or anything of value which he knows, or should be known to him,
to have been derived from the proceeds of the crime of robbery or theft.
b. "Fence" includes any person, firm, association, cor-
poration or partnership or other organization who/which commits the act of
fencing.
SEC. 3. Penalties. — Any person guilty of fencing shall be punished as
hereunder indicated:
a. The penalty of prision mayor, if the value of the
property involved is more than f*12,000 pesos but not exceeding f*22,000
pesos; if the value of such property exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding
one year for each additional r*10,000 pesos, but the total penalty which may
be imposed shall not exceed twenty years. In such cases, the penalty shall be
termed reclusion temporal and the accessory penalty pertaining thereto
provided in the Revised Penal Code shall also be imposed.
b. The penalty ofprision correccional in its medium and maximum

periods, if the value of the property robbed or stolen is more than P6,000 pesos
but not exceeding P12,000 pesos.
c. The penalty of prision correccional in its minimum and medium
periods, if the value of the property involved is more than P200 pesos but not
exceeding r*6,000 pesos.
d. The penalty of arresto mayor in its medium period to prision
correccional in its minimum period, if the value of the property involved is over
P50 pesos but not exceeding f*200 pesos.
e. The penalty of arresto mayor in its medium period if

such value is over five (5) pesos but not exceeding P50 pesos.
f. The penalty of arresto mayor in its minimum period,

if such value does not exceed P5 pesos.
SEC. 4. Liability of Officials of Juridical Persons. — If the fence is a
partnership, firm, corporation or association, the president or the manager or any
officer thereof who knows or should have known the commission of the offense
shall be liable.
578
579
SEC. 5. Presumption of Fencing. — Mere possession of any goods,
article, item, object, or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing.
SEC. 6. Clearance/Permit to Sell/Used Second Hand Articles. —
For purposes of this Act, all stores, establishments or entities dealing in
the buy and sell of any good, article, item, object or anything of value
obtained from an unlicensed dealer or supplier thereof, shall before
offering the same for sale to the public, secure the necessary clearance or
permit from the station commander of the Integrated National Police* in
the town or city where such store, establishment or entity is located. The
Chief of Constabulary/Director General, Integrated National Police**
shall promulgate such rules and regulations to carry out the provisions of
this section. Any person who fails to secure the clearance or permit
required by this section or who violates any of the provisions of the rules
and regulations promulgated thereunder shall upon conviction be
punished as fence.
SEC. 7. Repealing Clause. — All laws or parts thereof, which are

inconsistent with the provisions of this Decree are hereby repealed or
modified accordingly.
SEC. 8. Effectivity. — This Decree shall take effect upon approval.
Done in the City of Manila, this 2nd day of March, in the year of
Our Lord, nineteen hundred and seventy-nine.
(Sgd.) FERDINAND E. MARCOS

President of the Philippines
Note: In other crimes punishable by the Revised Penal Code, the penalty
lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the accessories to
the commission of a consummated felony. (Art. 53, Revised
Penal Code)
Accessory distinguished from principal and from

accomplice.
1. The accessory does not take direct part or cooperate in, or induce,
*Now, Philippine National Police (PNP). **Now,

Director General, PNP.
ACCESSORIES EXEMPT FROM CRIMINAL
LIABILITY
Art. 20
2. The accessory does not cooperate in the commission of the offense

by acts either prior thereto or simultaneous therewith.
3. The participation of the accessory in all cases always takes place
after the commission of the crime.
An accessory does not participate in the criminal design, nor
cooperate in the commission of the felony, but, with knowledge of
the commission of the crime, he subsequently takes part in any of
the three ways mentioned in Article 19. (People vs. Verzola, No. L-
35022, Dec. 21,1977, 80 SCRA 608)
Art. 20. Accessories who are exempt from criminal liability. — The
penalties prescribed for accessories shall not be imposed upon those w h o are
such with respect to their spouses, ascendants, descendants, legitimate, natural,
and adopted brothers and sisters, or relatives by affinity within the same
degrees, with the single exception of accessories falling within the provisions of
paragraph 1 of the next preceding article.
Ground for exemption.

The exemption provided for in this article is based on the ties of blood
and the preservation of the cleanliness of one's name, which compels one to
conceal crimes committed by relatives so near as those mentioned in this
article.
Principals related to accessories exempt from criminal

liability.
An accessory is exempt from criminal liability, when the principal is his
—
(1) spouse, or
(2) ascendant, or
(3) descendant, or
(4) legitimate, natural or adopted brother, sister or relative by affinity
within the same degree.
581
LIABILITY
Art. 20
Even if only two of the principals guilty of murder are the brothers of
the accessory and the others are not related to him, such accessory is exempt
from criminal liability. It appeared that some time after the crime was
committed, the accused (accessory) accompanied some of the other accused to
the place where the bodies of the victims were concealed on the night of the
murder, and helped them to remove and bury these bodies at another and
more remote spot. (U.S. vs. Abanzado, 37 Phil. 658, 669)
Nephew or niece not included among such relatives.

A nephew, who had witnessed the killing by his uncle of the deceased,
helped in burying the dead body. Is the nephew criminally liable as an
accessory? Yes, because the relationship of uncle and nephew is not included in
Art. 20.
In the case of U.S. vs. Insierto, 15 Phil. 358, it was held that the
relationship between uncle and niece does not come within any of the degrees
of relationship of spouse, or ascendant, descendant, legitimate, natural, or
adopted brother or sister, or relative by affinity in the same degree.
Accessory is not exempt from criminal liability even if the

principal is related to him, if such accessory (1) profited by
the effects of the crime, or (2) assisted the offender to
profit by the effects of the crime.
The last part of Article 20 says, "with the single exception of accessories
falling within the provisions of paragraph 1 of the next preceding article." The
preceding article is Article 19.
Paragraph 1 of Article 19, covers the accessories who take part
subsequent to the commission of the crime in any of the following manners:
1. By profiting by the effects of the crime.
2. By assisting the offender to profit by the effects of the crime.
If the accessory has performed any of those acts, he is liable, even if the
principal is his spouse, ascendant, descendant, brother or sister, or father-in-
law, or son-in-law, or brother-in-law, because such acts are prompted not by
affection but by a detestable greed.
Art. 20
582
LIABILITY
The daughter stole the earrings and the mother pawned them as a
pledge for her debt. Held: The mother is an accessory for although she had
no part in stealing the earrings, she took steps to obtain gain and profit from
the effects of the crime. The relationship does not exempt her from liability,
because she assisted in obtaining profit from the theft. (U.S. vs. Deuda, 14
Phil. 595, 601)
Only accessories under paragraphs 2 and 3 of Article

19 are exempt from criminal liability if they are
related to the principals.
A son who helps his father bury the body of a person whom the latter
has murdered, in order to prevent its discovery; a grandson who, having
knowledge of the commission of robbery by his grandfather, conceals or
destroys the body of the crime, or the effects or instruments thereof, in order
to prevent its discovery; and a person who harbors, conceals, or assists in the
escape of his brother who committed treason, do not incur any liability,
because the acts of the accessories in those cases are covered by paragraphs 2
and 3 of Art. 19. Not one of them falls under paragraph 1 of Art. 19, because
none of those accessories profits or assists the offender to profit by the effects
of the crime.
Does the concealing of the effects of the crime, not to

prevent its discovery, but to obtain gain, fall under
paragraph 2 of Art. 19?
Paragraph 2 of Article 19 requires that the purpose of the concealment
is to prevent the discovery of the crime. On the other hand, paragraph 1 says,
"by profiting themselves by the effects of the crime." Does paragraph 1 mean
that the accessory should actually profit from the effects of the crime? That
seems to be the meaning. But suppose a husband conceals the property stolen
by his wife in order to profit from it later, is he liable as accessory?
It would seem that he may be held liable as accessory, because his said
act is prompted not by affection but by a detestable greed. In that case, his
purpose in concealing the stolen property is not to prevent the discovery of the
crime.
But suppose A, who committed parricide by killing his wife, went to his
adopted brother to hide in the latter's house and his adopted brother
harbored and concealed A because he gave his adopted brother Art. 20
583
LIABILITY
f* 1,000.00, is the adopted brother an accessory? Is he criminally liable?
He is an accessory, because knowing that A committed parricide, he
harbored and concealed him. But he is not criminally liable, because he did not
profit by the effects of the crime. The PI,000.00 received by him from A was
not the effect of the crime of parricide.
Liability of a public officer when related to the

principal.
Is a public officer who, with evident abuse of his office, furnished the
means of escape to his brother who had committed murder criminally liable as
accessory?
Such a public officer does not incur any criminal liability. Ties of blood
or relationship constitutes a more powerful incentive than the call of duty.
Furthermore, Article 20 does not grant the benefits of exemption only to
accessories who profited or helped the offender profit by the effects of the crime.
This is the only case where the accessory who is related to the offender incurs
criminal liability.
584
Title Three
PENALTIES
Chapter One PENALTIES IN GENERAL
Penalty, defined.
Penalty is the suffering that is inflicted by the State for the transgression
of a law.
Concept of penalty.
Penalty in its general sense signifies pain; especially considered in the
juridical sphere, it means suffering undergone, because of the action of human
society, by one who commits a crime. (Pessina, Elementos de Derecho Penal,
pp. 375-376)
Different juridical conditions of penalty:

1. Must be productive of suffering, without however affecting the
integrity of the human personality.
2. Must be commensurate with the offense — different crimes must

be punished with different penalties.
3. Must be personal — no one should be punished for the crime of
another.
4. Must be legal — it is the consequence of a judgment according to
law.
5. Must be certain — no one may escape its effects.
6. Must be equal for all.
7. Must be correctional.
584
PENALTIES
These are the juridical conditions of penalty according to the classical
school on which the Code is mainly based.
What is the purpose of the State in punishing crimes?

To secure justice. The State has an existence of its own to maintain, a
conscience of its own to assert, and moral principles to be vindicated. Penal
justice must therefore be exercised by the State in the service and satisfaction
of a duty, and rests primarily on the moral rightfulness of the punishment
inflicted. (Albert) Theories justifying penalty:
(a) Prevention — The State must punish the criminal to prevent or
suppress the danger to the State arising from the criminal acts of
the offender.
(b) Self-defense — The State has a right to punish the criminal as a
measure of self-defense so as to protect society from the threat and
wrong inflicted by the criminal.
(c) Reformation — The object of punishment in criminal cases is to
correct and reform the offender.
(d) Exemplarity — The criminal is punished to serve as an example to
deter others from committing crimes.
(e) Justice — That crime must be punished by the State as an act of
retributive justice, a vindication of absolute right and moral law
violated by the criminal.
Social defense and exemplarity justify the penalty of

death.
When a person has proved himself to be a dangerous enemy of society,
the latter must protect itself from such enemy by taking his life in retribution
for his offense and as an example and warning to others. (People vs. Carillo, 85
Phil. 611, 635)
The penalty under this Code has three-fold purpose.

(a) Retribution or expiation — The penalty is commensurate with the
gravity of the offense.
(b) Correction or reformation — as shown by the rules which regulate
the execution of the penalties consisting in deprivation of liberty.
Art. 21 PENALTIES THAT MAY BE IMPOSED
586
(c) Social defense — shown by its inflexible severity to recidivists and
habitual delinquents.
Constitutional restriction on penalties.

The Constitution directs that "excessive fines shall not be imposed, nor
cruel and unusual punishment inflicted."
The punishment is "cruel and unusual" when it is so disproportionate
to the offense committed as to shock the moral sense of all reasonable men as
to what is right and proper under the circumstances.
Example: Those inflicted at the whipping post, or in pillory, burning at
the stake, breaking on the wheel, and the like. (People vs. De la Cruz, 92 Phil.
906, 908)
Appellant, who has been tried, convicted, and sentenced to suffer one
month imprisonment for collecting without legal authority bets for a daily
double race, an offense penalized by Rep. Act No. 3063 by "a fine of not less
than One thousand pesos nor more than Two thousand pesos or by
imprisonment for not less than one month or more than six months, or both,
in the discretion of the court," maintains that the penalty as applied to his
offense infringes the constitutional provision against excessive or cruel and
unusual punishment. Held: Neither fines nor imprisonment constitute in
themselves cruel and unusual punishment, for the constitutional stricture has
been interpreted as referring to penalties that are inhuman and barbarous, or
shocking to the conscience (Weems vs. U.S., 217 U.S. 349) and fines or
imprisonment are definitely not in this category. (People vs. Dionisio, G.R.
No. L-25513, March 27, 1968, 22 SCRA 1299, 1301)
Art. 21. Penalties that may be imposed. — No felony shall be punishable

by any penalty not prescribed by law prior to its commission.
Art. 21 simply announces the policy of the State as

regards punishing crimes.
This article is general in its provisions and in effect prohibits the
Government from punishing any person for any felony with any penalty
which has not been prescribed by the law.
PENALTIES THAT MAY BE IMPOSED Art. 21
587
It has no application to any of the provisions of the Revised
Penal Code for the reason that for every felony defined in the Code, a penalty
has been prescribed.
The provisions of Art. 21 can only be invoked when a person is being
tried for an act or omission for which no penalty has been prescribed by law.
Art. 21 is not a penal provision. It neither defines a crime nor provides a
punishment for one. It has simply announced the policy of the Government
with reference to the punishment of alleged criminal acts. It is a guaranty to
the citizen of this country that no act of his, will be considered criminal until
the Government has made it so by law and has provided a penalty. It is a
declaration that no person shall be subject to criminal prosecution for any act
of his until after the State has denned the crime and has fixed a penalty
therefor. (U.S. vs. Parrone, 24 Phil. 29, 35)
Reason for the provision.

An act or omission cannot be punished by the State if at the time it was
committed there was no law prohibiting it, because a law cannot be rationally
obeyed unless it is first shown, and a man cannot be expected to obey an order
that has not been given.
No penalty prescribed by law prior to its commission.

A was charged with "fraud or infringement of literary rights or
property," because A allegedly reproduced and sold fraudulent copies of
another's literary work. At that time, we had no copyright law. Can A be
punished for such act? No, because there was no law at that time defining and
penalizing the act. (U.S. vs. Yam Tung Way, 21 Phil.
67)
Subsidiary penalty for a crime cannot be imposed, if it

was
"not prescribed by law prior to its commission."
U.S. vs. Macasaet
(11 Phil. 447)
Facts: Macasaet was charged with and convicted of a violation of

the Internal Revenue Law (Act No. 1189) punishable by a fine. That
588
RETROACTIVE EFFECT OF PENAL LAWS Art. 22
law did not provide imprisonment for failure to pay the fine by reason
of insolvency. While the case was pending trial, Act No. 1732 took
effect. This new law provides subsidiary imprisonment for failure to
pay the fine under the old law (Act No. 1189). The court in imposing
the payment of the fine also imposed subsidiary imprisonment in view
of the provisions of the new law.
Held: Inasmuch as Act No. 1732 did not go into force until after
the commission of the crime by Macasaet, subsidiary imprisonment
cannot be lawfully imposed.
Art. 22. Retroactive effect of penal laws. — Penal laws shall have a
retroactive effect in so far as they favor the person guilty of a felony, w h o is
not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this
Code, although at the time of the publication of such laws a final sentence has
been pronounced and the convict is serving the same.
Art. 22 is not applicable to the provisions of the

Revised Penal Code.
This provision clearly has no direct application to the provisions of the
Revised Penal Code. Its application to the Revised Penal Code can only be
invoked where some former or subsequent law is under consideration. It must
necessarily relate (1) to penal laws existing prior to the Revised Penal Code, in
which the penalty was less severe than those of the Code; or (2) to laws
enacted subsequent to the Revised Penal Code, in which the penalty is more
favorable to the accused.
It is not believed, therefore, that the Legislature in enacting
Art. 10 (first clause) of the Revised Penal Code intended to provide that Art.
22 should not be applicable to special laws.
If by an amendment to the Revised Penal Code or by a later special law,
the punishment for an act is made less severe than by the provisions of the
Code, then the accused person might invoke the provisions of Art. 22. (See
U.S. vs. Parrone, 24 Phil. 29, 35-36)
General rule is to give criminal laws prospective

effect.
589
Art. 22 RETROACTIVE EFFECT OF PENAL LAWS
Before Art. 365 of the Revised Penal Code was amended, slight physical
injuries (a light felony) through reckless imprudence was not punishable. On
September 21,1954, the offended party suffered slight physical injuries
through the reckless imprudence of the accused. On June 21, 1957, before the
case against the accused could be finally decided, Republic Act No. 1790 was
approved, amending Art. 365 and making slight physical injuries through
reckless imprudence punishable. It was held that since the act involved
occurred long before the enactment of the amendatory legislation, it cannot be
applied as it is axiomatic that a criminal law may not be given retroactive
effect. (People vs. Changco, C.A., 54 O.G. 6749)
Exception — to give them retroactive effect when

favorable to the accused.
Before Republic Act No. 587, amending the Motor Vehicle Law took
effect (on January 1,1951), Section 68 of the Motor Vehicle Law specifically
provides that conviction thereunder shall not bar prosecution for other
offenses under another law.
The accused, driver of a bus, was convicted of the crime of homicide
with serious physical injuries through reckless imprudence for the death of
one passenger and for the injuries suffered by two other passengers of the bus.
He was also convicted of the crime of damage to property through reckless
imprudence for the destruction caused to the other bus. The act of the accused
which gave rise to the two crimes occurred before Republic Act No. 587 took
effect. The information for homicide with serious physical injuries alleged
facts sufficient to constitute such crime as that defined and penalized by
Section 67(d) of the Motor Vehicle Law, whereas the information for damage
to property is under Art. 365 of the Code.
As amended, the Motor Vehicle Law provides in its Section 67(d) that
"if, as the result of negligence or reckless or unreasonably fast driving any
accident occurs resulting in death or serious bodily injury to any person, the
motor vehicle driver at fault shall, upon conviction, be punished under the
provisions of the Penal Code."
It was held that although Republic Act No. 587 took effect after the
incident in question, the same may be applied, it being more
favorable to the accused. (Lapuz vs. Court of Appeals, 94 Phil. 710,
713)
590
Republic Act No. 587 is favorable to the accused, because instead of

being liable for two separate crimes under the Motor Vehicle Law and under
the Code, respectively, he is liable for one complex crime
under the Code only.
The exception applies to a law dealing with prescription of crime.

Art. 22 applies to a law dealing with prescription of an offense which is
intimately connected with that of the penalty, for the length of time for
prescription depends upon the gravity of the offense. (People vs. Moran, 44
Phil. 387, 400)
When the new law reduces the period of prescription of criminal actions
or establishes easier requirements to give the prescription effect, the reduction
conceded by the new law implies an acknowledgment on the part of the
sovereign power that the more severe requirements of the former law were
unjust in regard to the essence of the criminal action. (People vs. Parel, 44
Phil. 437, 442) Reason for the exception.
The sovereign, in enacting a subsequent penal law more favorable to the
accused, has recognized that the greater severity of the former law is unjust.
The sovereign would be inconsistent if it would still enforce its right under
conditions of the former law, which has already been regarded by
conscientious public opinion as
juridically burdensome. (People vs. Moran, 44 Phil. 387, 414) The new
law may provide otherwise.
Thus, Rep. Act No. 4661, reducing the period of prescription of criminal
action for libel from two years to one year, specifically provides that "The
provisions of this amendatory Act shall not apply to cases of libel already filed
in court at the time of approval of this amendatory Act."
Revised Penal Code was not given retroactive effect.

People vs. Carballo
(62 Phil. 651)
Facts: On January 12,1929, the accused who had been convicted
of bigamy accepted a conditional pardon extended to him by the
Governor General. During that year, he committed violations of the
Revised Ordinances of Manila and was convicted thereof by final
judgment on March 18, 1931.
591
Prior to January 1, 1932, when the Revised Penal Code took effect,
there was no law punishing the violation of a conditional pardon as a
crime.
Held: The provisions of the Revised Penal Code cannot be given
retroactive effect.
Giving a law retroactive effect, if unfavorable to accused,

will violate the constitutional inhibition as to ex post facto
laws.
An act which when committed was not a crime, cannot be made so by
statute without violating the constitutional inhibition as to ex
post facto laws. (People vs. Carballo, 62 Phil. 651, 653)
An ex post facto law is one which: (1) makes criminal an act done before
the passage of the law and which was innocent when done, and punishes such
an act; (2) aggravates a crime, or makes it greater than it was, when
committed; (3) changes the punishment and inflicts a greater punishment than
the law annexed to the crime when committed; (4) alters the legal rules of
evidence, and authorizes conviction upon less or different testimony than the
law required at the time of the commission of the offense; (5) assuming to
regulate civil rights and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful; and (6)
deprives a person accused of a crime of some lawful protection to which he has
become entitled, such as the protection of a former conviction or acquittal, or
a proclamation of amnesty. (Mejia vs. Pamaran, Nos. L-56741-42, April
15,1988, 160 SCRA 457, 472)
"Although at the time of the publication of such laws a

final sentence has been pronounced and the convict is
serving the same."
The provision of Art. 22 that penal laws shall have a retroactive effect
insofar as they favor the person guilty of a felony is applicable even if the
accused is already serving sentence. (Escalante vs. Santos, 56 Phil. 483, 485)
Illustration:
Under the old Penal Code, plea of guilty was not a mitigating
circumstance. A person accused of estafa under the old Penal Code
pleaded guilty upon arraignment. He began to serve sentence. While
serving sentence, the Revised Penal Code
592
took effect. In the petition for habeas corpus, the Supreme Court took
into account the mitigating circumstance of plea of guilty provided for
in Art. 13, par. 7, of the Revised Penal Code, as such mitigating
circumstance had the effect of decreasing the penalty already imposed.
(Rodriguez vs. Director of Prisons, 57 Phil. 133, 135-136)
The favorable retroactive effect of a new law may find the defendant in
one of these three situations:
1. The crime has been committed and prosecution begins;
2. Sentence has been passed but service has not begun;
3. The sentence is being carried out. (Escalante vs. Santos,

supra)
In any case, the favorable new statute benefits him and should apply to
him.
"Who is not a habitual criminal?"

But when the culprit is a habitual delinquent, he is not entitled to the
benefit of the provisions of the new favorable statute. (People vs. Alcaraz, 56
Phil. 520, 522)
A person shall be deemed to be a habitual delinquent if within a period
of ten years from the date of his release or last conviction of the crimes of
serious or less serious physical injuries, robbery, theft, estafa, or falsification, he
is found guilty of any said crimes a third time or oftener. (last paragraph of
Rule 5, Art. 62)
Not applicable to civil liability.

The principle that criminal statutes are retroactive so far as they favor
the culprit does not apply to the latter's civil liability, because the rights of
offended persons or innocent third parties are not within the gift of arbitrary
disposal of the State.
Suppose the indemnity in favor of the heirs of the person unlawfully
killed is reduced t f*l,000 by a new law, may the accused who committed the
crime before the new law is enacted demand that he be allowed to pay only
f*l,000, instead of f*3,000 as provided in the Civil Code? Since this question
refers to civil liability, the new law even if favorable to him cannot be given
retroactive effect.
593
But a new law increasing the civil liability cannot be

given retroactive effect.
Com. Act No. 284, which increased the minimum indemnity for the
death of a person by reason of the commission of a crime from P1,000 to
P2.000, was not given retroactive effect. (People vs. Panaligan, C.A., 40 O.G.
207)
Both laws must refer to the same deed or omission,

having the same end.
In order that a subsequent statute may have a retroactive effect, it must
in the first place refer to the same deed or omission penalized by the former
statute and must seek the same end and purpose. (U.S. vs. Macasaet, 11 Phil.
447, 449)
When new law is expressly made inapplicable.

The rule that criminal laws have retroactive effect when favorable to the
accused has no application where the new law is expressly
made inapplicable to pending actions or existing causes of action. (Tavera vs.
Valdez, 1 Phil. 468, 470-471)
Rule applied to special laws.

The provisions of this article are applicable even to special laws which
provide more favorable conditions to the accused. (U.S. vs. Soliman, 36 Phil. 5)
Republic Act No. 9346 given retroactive effect.

Republic Act No. 9346 which was enacted on June 24, 2006 prohibited
the imposition of the death penalty.
Section 2 of Rep. Act No. 9346 which provides that the penalty of
reclusion perpetua shall be imposed in lieu of the death penalty likewise
affects death sentences, whether or not already affirmed by the Supreme
Court. As Justice Callejo, Sr. points out in his ponencia in People v.
Quiachon, Article 22 of the Revised Penal Code mandates that "[p]enal laws
shall have a retroactive effect insofar as they favor the persons guilty of a
felony, who is not a habitual criminal . . . although at the time of the
publication of such laws, a final sentence has been pronounced and the
convict is serving the same." Persons previously convicted by final judgment
to death should enjoy the beneficial retroactive effect of Rep. Act No. 9346
594
which is reduction of the death penalty to either life imprisonment or

reclusion perpetua, as the case may be. The conclusion is confirmed by
Section 3 of the law, which makes reference to "persons whose sentences will
be reduced to reclusion perpetua, by reason of this Act." x x x (Concurring
Opinion in People vs. Tubongbanua, G.R. No. 171271, Aug. 31, 2006) Art.
22 and Art. 366 compared.
Art. 366. Application of laws enacted prior to this Code. Without
prejudice to the provisions contained in Art. 22 of this Code, felonies and
misdemeanors committed prior to the date of effectiveness of this Code shall
be punished in accordance with the Code or Acts in force at the time of their
commission.
Art. 22. Retroactive effect of penal laws. Penal laws shall have retroactive
effect insofar as they favor the person guilty of a felony, who is not a habitual
criminal, x x x although at the time of the publication of such laws a final
sentence has been pronounced and the convict is serving the same.
These two articles mean that while felonies and misdemeanors
committed prior to the date of effectiveness of the Revised Penal Code shall be
punished in accordance with the Code or Acts in force at the time of their
commission, the same should not be the case if such Code or Acts are
unfavorable to the guilty party, for the general principle on the retroactivity of
favorable penal laws, recognized in Art. 22, should then apply.
Lagrimas case and Tamayo case compared.

Lagrimas vs. Director of Prisons
(57 Phil. 249)
Facts: This is a petition for habeas corpus. The petitioner slapped
and use offensive language to a teacher in the public school. The
accused, now petitioner, was found guilty of assault upon a public
official and sentenced to the penalty of Art. 251 of the old Penal Code.
Article 149 of the Revised Penal Code does not prescribe a penalty for
the crime penalized by Art. 251 of the old Code.
Art. 251 of the old Penal Code is concordant to Art. 149 of the
Revised Penal Code with the difference that the latter contains no penal
sanction for the offense of laying hands upon agents of the authorities or
upon public officials.
Question: Whether the petitioner, who was sentenced under the
provision of the former Code, may be set at liberty on the ground that
595
the Revised Penal Code provides no penalty for the crime committed
under the former Code.
Held: The intention of the Legislature in embodying this provision
of Art. 366 in the Revised Penal Code was to insure that the elimination
from this Code of certain crimes penalized by former acts before the
enforcement of this Code should not have the effect of pardoning guilty
persons who were serving their sentences for the commission of such
crimes. Petition denied.
Dissenting: If the new law totally eliminates the penalty, it is
decidedly favorable to the accused and the new law should be applied in
accordance with Art. 22.
People vs. Tamayo

(61 Phil. 226)
Facts: The accused was convicted in the Justice of the Peace Court
for the violation of Sec. 2, Municipal Ordinance No. 5, Series of 1932, of
Magsingal, Ilocos Sur. While his appeal was pending, the Municipal
Council repealed Sec. 2 in question, with the result that the act
complained of was no longer a crime. The accused moved for the
dismissal of the action.
Held: A person cannot be prosecuted, convicted, and punished for
acts no longer criminal. The case was dismissed.
It would seem that in the Lagrimas case, the Legislature reenacted in the
Revised Penal Code the provision of Art. 251 of the old
Penal Code, with the difference that Art. 149 of the Revised Penal
Code does not punish an assault upon a public school teacher. If this is the
case, Art. 149 of the Revised Penal Code did not absolutely repeal Art. 251 of
the old Code. On the other hand, in the Tamayo case, the repeal (completely
eliminating Section 2 of the Ordinance under which the accused was being
prosecuted) was absolute. When the repeal is by reenactment, the court has
jurisdiction to try and
punish an accused person under the old law. (U.S. vs. Cuna, 12 Phil.
241, 247)
Criminal liability under former law is obliterated when the

repeal is absolute.
The repeal in the case of People vs. Tamayo is absolute, and not a
reenactment or repeal by implication. Nor is there any saving clause.
596
Criminal liability under the repealed law subsists:

(1) When the provisions of the former law are reenacted; or
(2) When the repeal is by implication; or

(3) When there is a saving clause. (U.S. vs. Cuna, 12 Phil. 241, supra;
Wing vs. U.S., 218 U.S. 272)
The right to punish offenses committed under an old penal law is not
extinguished if the offenses are still punished in the repealing penal law. (U.S.
vs. Cuna, supra; People vs. Rosenthal, 68 Phil. 328)
The repeal of penal law which impliedly repealed an old penal law revives the old
law.
When a penal law, which impliedly repealed an old law, is itself
repealed, the repeal of the repealing law revives the prior penal law, unless the
language of the repealing statute provides otherwise.
Illustration:
Act 1697 impliedly repealed the provisions of the old Penal Code
on perjury, but later, Act 1697 was itself repealed by the old
Administrative Code. The penalty provided in the old Penal Code, which
was lighter than the penalty provided in Art. 1697, was imposed on the
accused. (U.S. vs. Soliman, supra)
No retroactive effect of penal laws as regards jurisdiction

of court.
People vs. Pegarum

(58 Phil. 715)
Facts: A committed estafa involving an amount of P94.35. Under

the law then in force, the penalty for that crime was arresto mayor
597
PARDON THE OFFENDED PARTY
BY Art. 23
in its medium period to prision correccional minimum. This penalty

cannot be imposed by the justice of the peace court. The Court of First
Instance has jurisdiction over the case. At the time the complaint was
filed, the Revised Penal Code took effect. The penalty now for that crime
is arresto mayor in its medium and maximum periods, a penalty which
the justice of the peace court can impose.
Held: The justice of the peace court has jurisdiction.
The jurisdiction of a court to try a criminal action is to be determined by

the law in force at the time of instituting the action, not at the time of the
commission of the crime. (People vs. Romualdo, 90 Phil. 739, 744)
Jurisdiction of courts in criminal cases is determined by the allegations of the

complaint or information.
The jurisdiction of the courts in criminal cases is determined by the
allegations of the complaint or information, and not by the findings the court
may make after trial. (People vs. Mission, 87 Phil. 641, 642)
What penalty may be imposed for the commission of a

felony?
Only that penalty prescribed by law prior to the commission of the felony
may be imposed. (Art. 21)
Felonies are punishable under the laws in force at the time of their
commission. (Art. 366)
But the penalty prescribed by a law enacted after the commission of the
felony may be imposed, if it is favorable to the offender.
(Art. 22)
Art. 23. Effect of pardon by the offended party. — A pardon by the

offended party does not extinguish criminal action except as provided in
Article 344 of this Code; but civil liability with regard to the interest of the
injured party is extinguished by his express waiver.
Art. 23 BY
598
"A pardon by the offended party does not extinguish
criminal action."
Even if the injured party already pardoned the offender, the fiscal can
still prosecute the offender. Such pardon by the offended party is not even a
ground for the dismissal of the complaint or information.
Reason: A crime committed is an offense against the State. In criminal
cases, the intervention of the aggrieved parties is limited to being witnesses for
the prosecution. (People vs. Despavellador, 53 O.G. 21797) Only the Chief
Executive can pardon the offenders. (Art. 36)
Compromise does not extinguish criminal liability.

It is well-settled that criminal liability for estafa is not affected by
compromise, for it is a public offense which must be prosecuted and punished
by the Government on its own motion even though complete reparation should
have been made of the damage suffered by the offended party. (People vs.
Benitez, 59 O.G. 1407)
There may be a compromise upon the civil liability arising from an
offense; but such compromise shall not extinguish the public action for the
imposition of the legal penalty. (Art. 2034, Civil
Code)
A contract stipulating for the renunciation of the right to prosecute an
offense or waiving the criminal liability is void. The consideration or subject-
matter is illegal. (See Arts. 1306, 1352 and 1409 of the new Civil Code.)
"Except as provided in Art. 344 of this Code."

The offended party in the crimes of adultery and concubinage cannot
institute criminal prosecution, if he shall have consented or
pardoned the offenders. (Art. 344, par. 2)
The pardon here may be implied, as continued inaction of the offended
party after learning of the offense.
The second paragraph of Art. 344 requires also that both offenders must
be pardoned by the offended party. (People vs. Infante, 57 Phil. 138, 139)
BY Art. 23
In the crimes of seduction, abduction, rape or acts of lasciviousness,

there shall be no criminal prosecution if the offender has been
599
expressly pardoned by the offended party or her parents, grandparents, or
guardian, as the case may be. The pardon here must be express.
Pardon under Art. 344 must be made before institution

of criminal prosecution.
But the pardon afforded the offenders must come before the institution
of the criminal prosecution. (People vs. Infante, 57 Phil. 138 — adultery; People
vs. Miranda, 57 Phil. 274 — seduction)
Thus, when the complaint for adultery, concubinage or seduction, rape,
acts of lasciviousness, or abduction has already been filed in court, a motion to
dismiss based solely on the pardon by the offended party, given after the filing
of the complaint, will be denied by the court.
The only act that, according to Art. 344, extinguishes the penal action
after the institution of criminal action, is the marriage between the offender and
the offended party.
Pardon under Art. 344 is only a bar to criminal

prosecution.
Even under Art. 344, the pardon by the offended party does not
extinguish criminal liability; it is only a bar to criminal prosecution. Art. 89,
providing for total extinction of criminal liability, does not mention pardon by
the offended party as one of the causes of totally extinguishing criminal
liability.
"But civil liability with regard to the interest of the

injured party is extinguished by his express waiver."
As a general rule, an offense causes two classes of injuries: (1) social
injury, produced by the disturbance and alarm which are the outcome of the
offense; and (2) personal injury, caused to the victim of the crime who suffered
damage either to his person, to his property, to his honor or to her chastity.
The social injury is sought to be repaired through the imposition of the
corresponding penalty. The State has an interest in this class of injury. The
offended party cannot pardon the offender so as to relieve him of the penalty.
600
Art. 24 MEASURES OF PREVENTION NOT PENALTIES
But since personal injury is repaired through indemnity, which is civil

in nature, the offended party may waive it and the State has no reason to
insist in its payment.
The waiver, however, must be express.
Art. 24. Measures of prevention or safety which are not considered

penalties. — The following shall not be considered as penalties.
1. The arrest and temporary detention of accused persons, as well as
their detention by reason of insanity or imbecility, or illness requiring their
confinement in a hospital.
2. The commitment of a minor to any of the institutions mentioned in
Article 80* and for the purposes specified therein.
3. Suspension from the employment or public office during the trial or
in order to institute proceedings.
4. Fines and other corrective measures which, in the exercise of their
administrative or disciplinary powers, superior officials may impose upon
their subordinates.
5. Deprivation of rights and the reparations w h i c h the civil law m a y
establish in penal form.
"As well as their detention by reason of insanity or

imbecility."
Paragraph No. 1 of Article 24 contains the above phrase. This
paragraph does not refer to the confinement of an insane or imbecile who has
not been arrested for a crime. It refers to "accused persons" who are detained
"by reason of insanity or imbecility." The word "their" in the second clause
of paragraph No. 1, refers to "accused persons" in the first clause.
Why are they not considered penalties?

They are not penalties, because they are not imposed as a result of
judicial proceedings. Those mentioned in paragraphs Nos. 1,3 and 4 are
merely preventive measures before conviction of offenders.
*Now Art. 192, P.D. No. 603 (after Art. 80 in this Book).
601
MEASURES OF PREVENTION NOT PENALTIES Art. 24
The commitment of a minor mentioned in paragraph 2 is not a penalty,

because it is not imposed by the court in a judgment of conviction. The
imposition of the sentence in such case is suspended.
The fines mentioned in this article should not be imposed

by the court.
The "fines" mentioned in paragraph 4 are not imposed by the court,
because when imposed by the court, they constitute a penalty. (See Art. 25)
The Commissioner of Civil Service may, on certain grounds, fine an
employee in an amount not exceeding six months' salary.
Example of deprivation of rights established in penal

form.
The deprivation of rights established in penal form by the civil laws is
illustrated in the case of parents who are deprived of their parental authority
if found guilty of the crime of corruption of their minor children, in
accordance with Art. 332 of the Civil Code.
Chapter Two
CLASSIFICATION OF PENALTIES
Art. 25. Penalties which may be imposed. — The penalties which may be
imposed, according to this Code, and their different classes, are those included
in the following:
SCALE
PRINCIPAL PENALTIES
Capital punishment:
Death
Afflictive penalties:
Reclusion perpetua
Reclusion temporal
Perpetual or temporary absolute disqualification Perpetual or temporary
special disqualification
Prision mayor
Correctional penalties:
Prision correccional
Arresto mayor
Suspension Destierro
Light penalties:
Arresto menor
Public censure
Penalties common to the three preceding classes:

Fine, and
Bond to keep the peace.
602
603
Art. 25
ACCESSORY PENALTIES
Perpetual or temporary absolute disqualification

Perpetual or temporary special disqualification
Suspension from public office, the right to vote and be voted for, the
profession or calling
Civil interdiction
Indemnification
Forfeiture or confiscation of instruments and proceeds of the offense
Payment of cost.
"The penalties which may be imposed, according to this

Code, xxx are those included" in Art. 25 only.
A sentence of "five years in Bilibid" is defective, because it does not
specify the exact penalty prescribed in the Revised Penal Code. (U.S. vs.
Avillar, 28 Phil. 131, 134-135)
The penalty of hard labor in addition to imprisonment cannot be
imposed, because it is not authorized by the Revised Penal Code.
(U.S. vs. Mendoza, 14 Phil. 198, 203; People vs. Limaco, 88 Phil. 35,
43-44)
The penalty of life imprisonment or cadena perpetua imposed by the
trial court is an erroneous designation. The correct term is reclusion perpetua.
The penalty of cadena perpetua was abolished by the Revised Penal Code.
(People vs. Abletes, No. L-33304, July 31, 1974, 58 SCRA 241, 248)
"Life imprisonment" should be denominated reclusion perpetua since
that technical term is the penalty that carries with it the imposition of the
accessory penalties. (People vs. De la Cruz, No. L-45485, Sept. 19, 1978, 85
SCRA 285, 292)
It is error to impose cadena perpetua. That penalty, which was
imposed by the Spanish Penal Code of 1870, was repealed by the Revised
Penal Code. That barbarous, cruel and unusual punishment belongs to a
bygone era and is no longer imposed in this enlightened
age. (People vs. Lugtu, No. L-52237, Sept. 30, 1981, 108 SCRA 84,
91, Concurring Opinion of Justice Aquino)
604
Art. 25
The Revised Penal Code does not prescribe the penalty of life
imprisonment for any of the felonies therein defined, that penalty being
invariably imposed for serious offenses penalized not by the Revised Penal
Code but by special law. Reclusion perpetua entails imprisonment for at least
thirty (30) years after which the convict becomes eligible for parole. It also
carries with it accessory penalties, namely: perpetual special disqualification,
etc. It is not the same as life imprisonment which, for one thing, does not
appear to have any definite extent or duration. (People vs. Penillos, 205 SCRA
546, citing People vs. Baguio, 196 SCRA 459)
Note: Under R.A. No. 7659, the duration of reclusion perpetua is now
from 20 years and 1 day to 40 years.
Republic Act No. 9346 prohibited the imposition of the

death penalty.
Republic Act No. 9346 which was signed into law on June 24,
2006 prohibited the imposition of the death penalty, and provided for the
imposition of the penalty of reclusion perpetua in lieu of death, when the law
violated makes use of the nomenclature of the penalties of the Revised Penal
Code. (Secs.l and 2, Rep. Act No. 9346)
Art. 25 classifies penalties into principal and accessory.

This article classifies penalties into:
1. Principal penalties — those expressly imposed by the court in the
judgment of conviction.
2. Accessory penalties — those that are deemed included in the
imposition of the principal penalties.
The principal penalties may be classified:
According to their divisibility.
1. Divisible.
2. Indivisible.
Indivisible penalties are those which have no fixed duration.
The indivisible penalties are:
605
1. Death.
Art. 25
2. Reclusion perpetua.
3. Perpetual absolute or special disqualification.

4. Public censure.
Divisible penalties are those that have fixed duration and are divisible
into three periods.
Classification of penalties according to subject-matter:

1. Corporal (death).
2. Deprivation of freedom (reclusion, prision, arresto).
3. Restriction of freedom (destierro).
4. Deprivation of rights (disqualification and

suspension).
5. Pecuniary (fine).
Classification of penalties according to their gravity:

1. Capital,
2. Afflictive, 3. Correctional,
4. Light.
This classification corresponds to the classification of the felonies in Art.
9, into grave, less grave and light.
Public censure is a penalty.

Censure, being a penalty, is not proper in acquittal. (People vs.
Abellera, 69 Phil. 623, 625)
In a criminal case, there is only one issue, viz.: whether the accused is
guilty or not guilty. If he is found guilty, the court acquires jurisdiction to
impose a penalty; if he is found not guilty, no court has
the power to mete out punishment; a finding of guilt must precede the
punishment. (Gomez vs. Concepcion, 47 Phil. 717, 723)
606
Court acquitting the accused may criticize his acts or
conduct.
But a competent court, while acquitting an accused, may permit itself
nevertheless to criticize or reprehend his acts and conduct in
607
Art. 26 FINE, WHEN AFFLICTIVE, CORRECTIONAL OR
LIGHT
connection with the transaction out of which the accusation arose. The court
may, with unquestionable propriety, express its disapproval or reprehension
of those acts to avoid the impression that by acquitting
the accused it approves or admires his conduct.
In the case of People vs. Abellera, the accused was reprimanded by the
court in his capacity as clerk of court for various acts not material to the issue,
such as his acceptance of free meals and transportation from litigants, while
the charge was infidelity in the custody of public documents, of which he was
acquitted. (People vs. Meneses, 74 Phil. 119, 125, 127)
Penalties that are either principal or accessory.

Perpetual or temporary absolute disqualification, perpetual or
temporary special disqualification, and suspension may be principal or
accessory penalties, because they are formed in the two general classes.
Art. 236, punishing the crime of anticipation of duties of a public office,
provides for suspension as a principal penalty.
Arts. 226, 227 and 228, punishing infidelity of public officers in the
custody of documents, provide for temporary special disqualification as a
principal penalty.
Art. 26. Fine — When afflictive, correctional, or light penalty.

- A fine, whether imposed as a single or as an alternative penalty, shall be
considered an afflictive penalty, if it exceeds 6,000 pesos; a correctional
penalty, if it does not e x c e e d 6,000 pesos but is not less than 200 pesos; and
a light penalty, if it be less than 200 pesos.
"Whether imposed as a single or as an alternative

penalty."
Fines are imposed in many articles of this Code as an alternative penalty.
Example: In Art. 144, punishing disturbance of proceedings, the penalty is
arresto mayor or a fine ranging from P200 to P1.000.
Example of fine as a single penalty is a fine of f*200 to f*6,000.
608
FINE, WHEN AFFLICTIVE, CORRECTIONAL Art. 26 OR
LIGHT
Penalties cannot be imposed in the alternative.

The Court of First Instance of Quezon found Alejandro Mercadejas
guilty of a violation of Republic Act No. 145 and sentenced him "to pay a fine
of P1.000, or to suffer an imprisonment of two years, and to pay the costs."
Held: The law does not permit any court to impose a sentence in the
alternative, its duty being to indicate the penalty imposed definitely and
positively. (People vs. Mercadejas, C.A., 54 O.G. 5707; People vs. Tabije, C.A.,
59 O.G. 1922)
Art. 26 merely classifies fine and has nothing to do

with the definition of light felony.
A felony punishable by arresto menor or a fine not exceeding P200 is a
light felony. (Art. 9, par. 3) When the penalty is correctional, it is a less grave
felony. (Art. 9, par. 2) It is a light penalty if the amount of the fine imposed is
less than P200, and it is a correctional penalty if it is not less than P200 and
does not exceed f*6,000. (Art. 26) If the fine prescribed by the law for a felony
is exactly P200, is it a light felony or a less grave felony? It is a light felony
because Art.
9, par. 3, which defines light felony should prevail.
Fine is:
1. Afflictive - over f*6,000.00
2. Correctional - P200.00 to P6.000.00
3. Light penalty — less than P200.00
Bond to keep the peace is by analogy:

1. Afflictive — over P6,000.00
2. Correctional - P200.00 to P6.000.00
3. Light penalty - less than P200.00 (Albert)
Chapter Three
609
DURATION AND EFFECT OF PENALTIES
Section One. — Duration of Penalties
Art. 27. Reclusion perpetua. — The penalty of reclusion perpetua shall be

from twenty years and one day to forty years.
Reclusion temporal. — The penalty of reclusion temporal shall be from
twelve years and one day to twenty years.
Prision mayor and temporary disqualification. — The duration of the
penalties of prision mayor and temporary disqualification shall be from six
years and one day to twelve years, except w h e n the penalty of
disqualification is imposed as an accessory penalty, in which case, its duration
shall be that of the principal penalty.
Prision correccional, suspension, and destierro. — The duration of the
penalties of prision correccional, suspension, and destierro shall be from six
months and one day to six years, except w h e n suspension is imposed as an
accessory penalty, in w h i c h case, its duration shall be that of the principal
penalty.
Arresto mayor. — The duration of the penalty of arresto mayor shall be
from one month and one day to six months.
Arresto menor. — The duration of the penalty of arresto menor shall be
from one day to thirty days.
Bond to keep the peace. — The bond to k e e p the peace shall be
required to cover such period of time as the court may determine. (As
amended by R.A. No. 7659, approved on December 13, 1993)
Duration of each of different penalties.

1. Reclusion perpetua — 20 yrs. and 1 day to 40 yrs.
2. Reclusion temporal — 12 yrs. and 1 day to 20 yrs.
608
DURATION OF PENALTIES Art. 27

3. Prision mayor and temporary disqualification — 6 yrs. and 1 day to
12 yrs., except when disqualification is accessory penalty, in which
case its duration is that of the principal penalty.
4. Prision correccional, suspension, and destierro — 6 mos. and 1 day
to 6 yrs., except when suspension is an accessory penalty, in which
case its duration is that of the principal penalty.
5. Arresto mayor — 1 mo. and 1 day to 6 mos.
6. Arresto menor — 1 day to 30 days.

7. Bond to keep the peace — the period during which the bond shall
be effective is discretionary on the court.
Temporary disqualification and suspension, when

imposed as accessory penalties, have different durations
— they follow the duration of the principal penalty.
Thus, if the penalty imposed is arresto mayor, the duration of the
accessory penalty of suspension of the right to hold office and the right of
suffrage (Art. 44) shall be that of arresto mayor.
Note the clauses in paragraphs 3 and 4 which say "except when the
penalty (of disqualification or suspension) is imposed as an accessory penalty,
in which case its duration shall be that of the principal penalty."
In what cases is destierro imposed?

In the following:
1. Serious physical injuries or death under exceptional
circumstances. (Art. 247)
2. In case of failure to give bond for good behavior. (Art. 284)
3. As a penalty for the concubine in concubinage. (Art. 334)
4. In cases where after reducing the penalty by one or more degrees
destierro is the proper penalty.
611
Art. 28 COMPUTATION OF PENALTIES
Bond to keep the peace is not specifically provided as a penalty for any felony
and therefore cannot be imposed by the court.
Since according to Art. 21 no felony shall be punishable by any penalty
not prescribed by law prior to its commission, and bond to keep the peace is
not specifically provided for by the Code for any felony, that penalty cannot
be imposed by the court.
Bond for good behavior under Art. 284 of the Code, which is required of
a person making a grave or light threat, is not required to be given in cases
involving other crimes.
Art. 28. Computation of penalties. — If the offender shall be in prison,

the term of the duration of the temporary penalties shall be computed from
the day on w h i c h the judgment of conviction shall have become final.
If the offender be not in prison, the term of the duration of the penalty
consisting of deprivation of liberty shall be computed from the day that the
offender is placed at the disposal of the judicial authorities for the
enforcement of the penalty. The duration of the other penalties shall be
computed only from the day on which the defendant c o m m e n c e s to serve
his sentence.
Rules for the computation of penalties.

The Director of Prisons or the warden should compute the penalties
imposed upon the convicts, observing the following rules:
1. When the offender is in prison — the duration of temporary
penalties is from the day on which the judgment of conviction
becomes final.
2. When the offender is not in prison — the duration of penalty
consisting in deprivation of liberty, is from the day that the
offender is placed at the disposal of judicial authorities for the
enforcement of the penalty.
3. The duration of other penalties — the duration is from the day on
which the offender commences to serve his sentence.
COMPUTATION OF PENALTIES Art. 28
612
If the accused, who was in custody, appealed, his service of sentence
should commence from the date of the promulgation of the
decision of the appellate court, not from the date the judgment of the trial
court was promulgated. (Ocampo vs. Court of Appeals, 97 Phil. 949 [Unrep.],
No. L-7469, May 6, 1955)
The service of a sentence of one in prison begins only on the day the
judgment of conviction becomes final. (Baking vs. Director of Prisons, No. L-
30603, July 28, 1969, 28 SCRA 851, 856)
The accused could not be considered as committed or placed in jail by
virtue of the decision of the Court of Appeals, although he was already in jail
when that judgment was received. The fact of his custody as a mere appellant
pending appeal continued, and the receipt of the decision of the Court of
Appeals did not change the detention of the accused into service of the
judgment. The reading of the sentence of the Court of Appeals to the accused
was still a necessary step previous to the actual commitment of the accused.
(People vs. Enriquez, 107 Phil. 201, 207)
Examples of temporary penalties:

(1) Temporary absolute disqualification.
(2) Temporary special disqualification.
(3) Suspension.
Rules in cases of temporary penalties:

If offender is under detention, as when he is undergoing preventive
imprisonment, Rule No. 1 applies.
If not under detention, because the offender has been released on bail,
Rule No. 3 applies.
Examples of penalties consisting in deprivation of liberty:

(1) Imprisonment.
(2) Destierro.
Rules in cases of penalties consisting in deprivation of

liberty.
When the offender is not in prison, Rule No. 2 applies.
If the offender is undergoing preventive imprisonment, the computation
of the penalty is not from the day that the offender is placed at the disposal of
the judicial authorities for the enforcement of the penalty. Rule No. 3 applies,
613
Art. 29 PREVENTIVE IMPRISONMENT
that is, the duration of the penalty shall be computed from the day on which
the defendant commences
to serve his sentence.
But the offender is entitled to a deduction of full time or fourfifths (4/5)
of the time of his detention.
Reason for Rule No. 1:
The duration of temporary penalties shall be computed only from the
day the judgment of conviction becomes final, and not from the day of his
detention, because under Art. 24 the arrest and temporary detention of the
accused is not considered a penalty.
Art. 29. Period of preventive imprisonment deducted from term of

imprisonment. — Offenders or accused w h o have undergone preventive
imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during w h i c h they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in
writing to abide by the same disciplinary rules imposed upon convicted
prisoners, except in the following cases:
1. When they are recidivists, or have b e e n convicted previously twice
or more times of any crime; and
2. When upon being s u m m o n e d for the execution of their sentence
they have failed to surrender voluntarily.
If the detention prisoner does not agree to abide by the same
disciplinary rules imposed u p o n convicted prisoners, he shall be credited in
the service of his sentence with fourfifths of the time during w h i c h he has
undergone preventive imprisonment.
Whenever an accused has undergone preventive imprisonment for a
period equal to or more than the possible maxim u m imprisonment of the
offense charged to w h i c h he may be sentenced and his case is not yet
terminated, he shall be released immediately without prejudice to the
continuation of the trial thereof or the proceeding on appeal, if the same is
614
PREVENTIVE IMPRISONMENT
Art. 29
under review. In case the m a x i m u m penalty to w h i c h the accused may

be sentenced is destierro, he shall be released after thirty (30) days of
preventive imprisonment. (As amended by
Rep. Act No. 6127, and Exec. Order No. 214)
When is there preventive imprisonment?

The accused undergoes preventive imprisonment when the offense
charged is nonbailable, or even if bailable, he cannot furnish the required bail.
The full time or four-fifths of the time during which

offenders have undergone preventive imprisonment shall
be deducted
from the penalty imposed.
Offenders who have undergone preventive imprisonment shall be
credited in the service of their sentence with the full time during which they
have undergone preventive imprisonment, if the detention prisoner agrees
voluntarily in writing to abide by the same disciplinary rules imposed upon
convicted prisoners.
If the detention prisoner does not agree to abide by the same
disciplinary rules imposed upon convicted prisoners, he shall be credited in
the service of his sentence with four-fifths of the time during which he has
The appellant should be credited with the full time of his preventive
imprisonment upon a showing that he agreed to abide by the same
disciplinary rules imposed upon convicted prisoners; otherwise, he shall be
credited with four fifths (4/5) of the time of such preventive imprisonment.
(People vs. Herila, No. L-32785, May 21, 1973,
51 SCRA 31, 39; People vs. Abanes, No. L-30609, Sept. 28, 1976, 73 SCRA
44,48; People vs. Lingao, No. L-28506, Jan. 31,1977, 75 SCRA
130, 135-136; People vs. Clementer, No. L-33490, Aug. 30, 1974, 58
SCRA 742, 749)
Under Art. 197 of the Child and Youth Welfare Code (Presidential
Decree No. 603), the youthful offender shall be credited in the service of his
sentence with the full time he spent in actual confinement and detention. It is
615
not necessary that he agreed to abide by the disciplinary rules imposed upon
convicted prisoners.
Illustration of the application of this article.

A was accused of homicide punishable by reclusion temporal.
Because he could not put a bail of P15,000, A was detained pending his trial
which lasted for two years. If after trial, A was found guilty and sentenced to
an indeterminate penalty of from 6 years and 1 day to 12 years and 1 day, the
full period of A's preventive imprisonment of 2 years shall be deducted from
12 years and 1 day, if he agreed voluntarily in writing before or during the
time of his temporary detention to abide by the same disciplinary rules
imposed upon convicted prisoners. But if A did not agree to abide by the same
disciplinary rules imposed upon convicted prisoners, only 4/5 of the 2 years
during which he has undergone preventive imprisonment will be deducted
from 12 years and 1 day.
Must preventive imprisonment be considered in perpetual

penalties?
This allowance should be made even in the case of perpetual punishment.
This article does not make any distinction between temporal and perpetual
penalties.
Thus, even if the accused is sentenced to life imprisonment, he is entitled
to the full time or 4/5 of the time of the preventive imprisonment. (See U.S. vs.
Ortencio, 38 Phil. 341, 345)
The credit is given in the service of sentences "consisting

of deprivation of liberty."
Thus, if the offense for which the offender is undergoing preventive
imprisonment is punishable by imprisonment or a fine, and upon conviction
the court imposed on him only a fine, there is no credit to be given.
Illustration:
A was accused of a violation of Art. 143 of the Revised
Penal Code. The penalty provided for in that Article is prision
correccional or a fine from f*200 to f*2,000, or both. During the
pendency of his trial, A was detained for ten days. Having been found
guilty, A was sentenced to pay a fine of P500. Can A successfully claim
that his fine should be reduced because of his preventive imprisonment
for ten days?
Art. 29
616
PREVENTIVE IMPRISONMENT
No, because his sentence does not consist in deprivation of liberty.
Destierro constitutes "deprivation of liberty."

Although destierro does not constitute imprisonment (which is a typical
example of deprivation of liberty), it is nonetheless a deprivation of liberty. It
follows that Article 29 is applicable when the penalty is destierro. The accused
should be credited with the time during which he has undergone preventive
imprisonment. (People vs. Bastasa, No. L-32792, Feb. 2, 1979, 88 SCRA 184,
193)
Convict to be released immediately if the penalty imposed

after trial is less than the full time or four-fifths of the time
of the preventive imprisonment.
Thus, if A has been detained for 5 months and 10 days pending his trial
for less serious physical injuries and after trial he is sentenced to 4 months of
arresto mayor, he should be released immediately. (See People vs. Quiosay, 103
Phil. 1160 [Unrep.])
The accused need not serve the penalty of destierro, for having satisfied
the conditions laid down in Article 29 of the Revised Penal Code, he should be
entitled to credit for the preventive imprisonment which he has undergone
since August, 1970. (People vs. Salik Magonawal, No. L-35783, March 12,1975,
63 SCRA 106, 113)
Accused shall be released immediately whenever he has

undergone preventive imprisonment for a period equal to
or more than the possible maximum imprisonment for the
offense charged.
Illustration:
A is accused of the crime of less serious physical injuries
punishable by imprisonment from 1 month and 1 day to 6 months. He
has been under detention in jail for 6 months, pending his trial. In that
case, A should be released immediately, but the trial of his case will
continue.
If the maximum penalty to which the accused may be

sentenced is destierro.
Illustration:
617
A is accused of a crime punishable by a penalty from arresto
menor to destierro (6 months and 1 day to 6 years). A has been detained
for 30 days since his arrest. In that case, A should be released
immediately after 30 days from his arrest and detention, even if the
duration of destierro, the maximum penalty to which he may be
sentenced, is from 6 months and 1 day to 6 years. The reason for this is
that in destierro, the accused sentenced to that penalty does not serve it
in prison. He is free, only that he cannot enter the prohibited area
specified in the sentence.
Offenders not entitled to the full time or four-fifths of the

time of preventive imprisonment.
The following offenders are not entitled to be credited with the full time
or 4/5 of the time of preventive imprisonment:
1. Recidivists or those convicted previously twice or more times of
any crime.
2. Those who, upon being summoned for the execution of their
sentence, failed to surrender voluntarily.
Before Art. 29 was amended by Rep. Act No. 6127, those who were
convicted of robbery, theft, estafa, malversation of public funds, falsification,
vagrancy or prostitution were not credited with any part of the time during
which they underwent preventive imprisonment. Those offenses are
enumerated in paragraph No. 3 of the original Art. 29.
In view of the elimination in Rep. Act No. 6127 of paragraph No. 3 of the
original Art. 29, those convicted of robbery, theft, estafa, malversation,
falsification, vagrancy or prostitution are now to be credited in the service of
their sentence with the full time or 4/5 of the time during which they have
Habitual delinquent is included in paragraph No. 1.

A habitual delinquent is not entitled to the full time or 4/5 of the time of
preventive imprisonment, because a habitual delinquent is necessarily a
recidivist or that at least he has been "convicted previ-
618
EFFECTS OF PENALTIES
Art. 30
ously twice or more times of any crime." (See People vs. Gona, G.R. No.
47177, Nov. 4, 1940)
"They have failed to surrender voluntarily."

Note that paragraph No. 2 does not refer to failure to surrender
voluntarily after the commission of the crime. It says, "when upon being
summoned for the execution of their sentence."
Example:
A was arrested for serious physical injuries inflicted on B and,
pending his investigation and trial, he was detained for one year. He was
able to go out on bail after one year. Later, he was summoned for the
execution of his sentence, he having been found guilty. Because he failed
to appear, the court issued an order for his arrest and confiscation of his
bond. Although, he is not covered by paragraph No. 1 of Art. 29, as
amended, A will not be credited in the service of his sentence for serious
physical injuries with one year or four-fifths of one year preventive
imprisonment.
Section Two. — Effects of the penalties according to their

respective nature
Art. 30. Effects of the penalties of perpetual or temporary absolute

disqualification. — The penalties of perpetual or temporary absolute
disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the
offender may have held, even if conferred by popular election.
2. The deprivation of the right to vote in any election for any popular
elective office or to be elected to such office.
3. The disqualification for the offices or public employments and for the
exercise of any of the rights mentioned.
In case of temporary disqualification, such disqualification as is
comprised in paragraphs 2 and 3 of this Article shall last during the term of
the sentence.
Arts. 31-33 EFFECTS OF PENALTIES
619
4. The loss of all rights to retirement pay or other pen sion for any office
formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special

disqualification. — The penalties of perpetual or temporary special
disqualification for public office, profession, or calling shall produce the
following effects:
1. The deprivation of the office, employment, profession or calling
affected.
2. The disqualification for holding similar offices or employments either
perpetually or during the term of the sentence, according to the extent of such
disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special

disqualification for the exercise of the right of suffrage. — The perpetual or
temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence, according
to the nature of said penalty, of the right to vote in any popular election for
any public office or to be elected to such office. Moreover, the offender shall
not be permitted to hold any public office during the period of his
disqualification.
Art. 33. Effects of the penalties of suspension from any public office,
profession, or calling, or the right of suffrage. — The suspension from public
office, profession, or calling, and the exercise of the right of suffrage shall
disqualify the offender from holding such office or exercising such profession
or calling or right of suffrage during the term of the sentence.
The person suspended from holding public office shall not hold another
having similar functions during the period of his suspension.
Arts. 34-35
Art. 34. Civil interdiction. — Civil interdiction shall deprive the offender
during the time of his sentence of the rights of parental authority, or
guardianship, either as to the person or property of any ward, of marital
authority, of the right to manage his property, and of the right to dispose of
such property by any act or any conveyance inter vivos.
620
Art. 35. Effects of bond to keep the peace. — It shall be the duty of any
person sentenced to give bond to k e e p the peace, to present two sufficient
sureties w h o shall undertake that such person will not commit the offense
sought to be prevented, and that in case such offense be committed they will
pay the amount determined by the court in its judgment, or otherwise to
deposit such amount in the office of the clerk of the court to guarantee said
undertaking.
The court shall determine, according to its discretion, the period of
duration of the bond.
Should the person sentenced fail to give the bond as required he shall be
detained for a period which shall in no case exceed six months, if he shall have
been prosecuted for a grave or less grave felony, and shall not exceed thirty
days, if for a light felony.
Outline of the effects of penalties under Arts. 30-35.

1. The penalties of perpetual or temporary absolute disquali-fication
for public office produce the following effects:
a. Deprivation of public offices and employments, even if by
election.
b. Deprivation of right to vote or to be elected.
c. Disqualification for the offices or public employments and
for the exercise of any of the rights mentioned.
d. Loss of right to retirement pay or pension for any office
formerly held. (Art. 30)
621
Arts. 30-35
Note: Perpetual absolute disqualification is effective

during the lifetime of the convict and even after the service of
the sentence. Temporary absolute disqualification lasts during
the term of the sentence, and is removed after the service of
the same, except (1) deprivation of the public office or
employment; and (2) loss of all rights to retirement pay or
other pension for any office formerly held. (See Art. 30, par.
following No. 3.)
2. The penalties of perpetual or temporary special disqualification for

public office, profession or calling produce the following effects:
a. Deprivation of the office, employment, profession or calling
affected.
b. Disqualification for holding similar offices or employments
perpetually or during the term of the sentence. (Art. 31)
3. The penalties of perpetual or temporary special disqualification for
the exercise of the right of suffrage produce the following effects:
a. Deprivation of the right to vote or to be elected to any public
office.
b. Cannot hold any public office during the period of
disqualification. (Art. 32)
4. The penalties of suspension from public office, profession or calling
or the right of suffrage produce the following effects:
a. Disqualification from holding such office or exercising such
profession or calling or right of suffrage during
the term of the sentence.
b. If suspended from public office, the offender cannot hold
another office having similar functions during the period of
suspension. (Art. 33)
5. Civil interdiction shall produce the following
effects:
a. Deprivation of the rights of parental authority or
guardianship of any ward.
Arts. 30-35
622
b. Deprivation of marital authority.
c. Deprivation of the right to manage his property and of the
right to dispose of such property by any act or any
conveyance inter vivos. (Art. 34)
Note: But he can dispose of such property by will or

donation mortis causa.
6. Bonds to keep the peace.

a. The offender must present two sufficient sureties who shall
undertake that the offender will not commit the offense
sought to be prevented, and that in case such offense be
committed they will pay the amount determined by the
court; or
b. The offender must deposit such amount with the clerk of
court to guarantee said undertaking; or
c. The offender may be detained, if he cannot give the bond, for
a period not to exceed 6 months if prosecuted for grave or
less grave felony, or for a period not to exceed 30 days, if for
a light felony. (Art. 35)
Note: Bond to keep the peace is different from bail

bond which is posted for the provisional release of a person
arrested for or accused of a crime.
Disqualification is withholding of privilege, not a denial of

right.
The manifest purpose of the restrictions upon the right of suffrage or to
hold office is to preserve the purity of elections. The presumption is that one
rendered infamous by conviction of felony, or other base offenses indicative of
moral turpitude, is unfit to exercise the privilege of suffrage or to hold office.
The exclusion must for this reason be adjudged a mere disqualification,
imposed for protection and not for punishment, the withholding of a privilege
and not the denial of a personal right. (People vs. Corral, 62 Phil. 945, 948)
In this case, the accused, who was sentenced in 1910 by final judgment to
suffer 8 years and 1 day of prision mayor for an offense and who was not
granted plenary pardon, voted at the general elections held on June 5, 1934. It
was held that the right of the State to Art. 36 PARDON BY THE
PRESIDENT
623
deprive persons of the right of suffrage by reason of their having been
convicted of crime, is beyond question.
The accessory penalty of temporary absolute disqualification disqualifies
the convict for public office and for the right to vote, such disqualification to
last only during the term of the sentence. (Lacuna vs. Abes, No. L-28613,
Aug. 27, 1968, 24 SCRA 780, 784)
"Perpetually or during the term of the sentence,

according to the nature of said penalty."
The word "perpetually" and the phrase "during the term of the
sentence" should be applied distributively to their respective antecedents;
thus, the word "perpetually" refers to the perpetual
kind of special disqualification, while the phrase "during the term of the
sentence" refers to the temporary special disqualification. The duration
between the perpetual and the temporary (both special) are necessarily
different because the provision, instead of merging their durations into one
period, states that such duration is "according to the nature of said penalty"
— which means according to whether the penalty is the perpetual or the
temporary special disqualification. (Lacuna vs. Abes, supra, at 784)
What suspension from exercise of profession covers.

Suspension, which deprives the offender of the right of exercising any
kind of profession or calling, covers such calling or trade as for instance that
of broker, master plumber, etc.
Bond to keep the peace is not bail bond.

Bond to keep the peace or for good behavior is imposed as a penalty in
threats. (Art. 284) This is different from a bail bond (Rule 114, Revised Rules
of Criminal Procedure) to secure the provisional release of an accused person
after his arrest or during trial but before final judgment of conviction.
Art. 36. Pardon; its effects. — A pardon shall not work the restoration of
the right to hold public office, or the right of suffrage, unless such rights be
expressly restored by the terms of the pardon.
624
PARDON BY THE PRESIDENT Art. 36
A pardon shall in no case exempt the culprit from the payment of the
civil indemnity imposed u p o n him by the sentence.
Effects of pardon by the President.

1. A pardon shall not restore the right to hold public office or the
right of suffrage.
Exception: When any or both such rights is or are expressly
restored by the terms of the pardon.
2. It shall not exempt the culprit from the payment of the civil
indemnity. The pardon cannot make an exception to this rule.
Limitations upon the exercise of the pardoning

power:
1. That the power can be exercised only after conviction;
2. That such power does not extend to cases of impeachment.

(Cristobal vs. Labrador, 71 Phil. 34, 38)
Pardon may be granted only "after conviction by final

judgment."
The "conviction by final judgment" limitation under Section 19,
Article VII of the present Constitution prohibits the grant of pardon, whether
full or conditional, to an accused during the pendency of his appeal from his
conviction by the trial court. Any application therefor, if one is made, should
not be acted upon nor the process toward its grant be commenced unless the
appeal is withdrawn. Accordingly, the agencies or instrumentalities of the
Government concerned must require proof from the accused that he has not
appealed from his conviction or that he has withdrawn his appeal. Such proof
may be in the form of a certification issued by the trial court or the appellate
court, as the case may be. The acceptance of the pardon shall not operate as
an abandonment or waiver of the appeal, and the release of an accused by
virtue of a pardon, commutation of sentence, or parole before the withdrawal
of an appeal shall render those responsible therefor administratively liable.
(People vs. Salle, Jr., 250 SCRA 592)
Art. 36 PARDON BY THE PRESIDENT
625
Pardon granted in general terms does not include
accessory penalty.
When the principal penalty is remitted by pardon, only the effect of
that principal penalty is extinguished, but not the accessory
penalties attached to it.
For instance, a person sentenced to prision mayor (which carries with it
the accessory penalty of perpetual special disqualification from the right of
suffrage) is pardoned by the President. Such pardon does not restore to the
ex-convict the right to vote, unless such right be expressly restored by the
terms of the pardon.
Exception:
When an absolute pardon is granted after the term of imprisonment has
expired, it removes all that is left of the consequences of conviction. (Cristobal
vs. Labrador, supra)
Although the rule is that a pardon does not restore the right to hold
public office or the right of suffrage, unless expressly stated in the pardon, the
exception is where the facts and circumstances of the case already show that
the purpose of the Chief Executive is precisely to restore those rights. For
instance, when it appears that the respondent mayor-elect committed the
offense more than 25 years ago; that he was granted conditional pardon in
1915; that thereafter he exercised the right of suffrage, was elected councilor
for the period from 1918 to
1921; that he was elected municipal president three times in succession (1922
to 1931); that he was elected mayor in 1940; it is evident that the purpose in
granting him absolute pardon, after the election of 1940 but before the date
fixed by law for assuming office, was to enable him to assume the position in
deference to the popular will. (Pelobello vs. Palatino, 72 Phil. 441, 443;
Cristobal vs. Labrador, supra)
Pardon after serving 30 years does not remove perpetual

absolute disqualification.
Suppose a pardon is granted upon a convict undergoing life
imprisonment after serving 30 years. Is the convict likewise pardoned from
the penalty of perpetual absolute disqualification which is an accessory to life
imprisonment?
No, because Art. 30 is silent as to the maximum duration of perpetual
disqualification and Art. 36 expressly provides that a parCOST Art. 37
626
don shall not work the restoration of the right to hold public office or the right
of suffrage, unless such rights be expressly restored by the terms of the
pardon. (Guevara)
Pardon by the Chief Executive distinguished from

pardon by the offended party:
1. Pardon by the Chief Executive extinguishes the criminal liability
of the offender; such is not the case when the pardon is given by
the offended party.
2. Pardon by the Chief Executive cannot include civil liability which
the offender must pay; but the offended party can waive the civil
liability which the offender must pay.
3. In cases where the law allows pardon by the offended party (Art.
344), the pardon should be given before the institution of criminal
prosecution and must be extended to both offenders; whereas,
pardon by the Chief Executive is granted only after conviction
and may be extended to any of the offenders.
Art. 37. Costs — What are included. — Costs shall include fees and
indemnities in the course of the judicial proceedings, whether they be fixed or
unalterable amounts previously determined by law or regulations in force, or
amounts not subject to schedule.
The following are included in costs:

1. Fees, and
2. Indemnities, in the course of judicial proceedings.
Costs are chargeable to the accused in case of

conviction.
Costs which are expenses of litigation are chargeable to the accused
only in cases of conviction. In case of acquittal, the costs are de oficio, each
party bearing his own expenses.
Thus, of three accused, two were convicted while the third was
acquitted. Only one of the two convicted appealed. His conviction Art. 38
PECUNIARY LIABILITIES
627
was affirmed. He was ordered to pay one-third of the costs. (People vs.
Bongo, No. L-26909, Feb. 22, 1974, 55 SCRA 547, 548, 555)
No costs against the Republic, unless the law

provides the contrary.
No costs shall be allowed against the Republic of the Philippines, unless
otherwise provided by law. (Sec. 1, Rule 142, Rules of Court) Payment of

costs is discretionary.
The payment of costs is a matter that rests entirely upon the discretion
of courts. Appeal will hardly lie to interfere with the discretion. (Roque vs.
Vda. de Cogan, 40 O.G., 10th Supp., 35; Bacolod-
Murcia Planters' Assn., Inc. vs. Chua, 84 Phil. 596, 599)
Whether costs should be assessed against the accused lie within the
discretion of the court. The Government may request the court to assess costs
against the accused, but not as a right. No attorney's fees shall be taxed as cost
against the adverse party. (Sec. 6, Rule
142, Rules of Court)
Art. 38. Pecuniary liabilities — Order of payment. — In case the property

of the offender should not be sufficient for the payment of all his pecuniary
liabilities, the same shall be met in the following order:
1. The reparation of the damage caused.
2. Indemnification of the consequential damages.
3. The fine.
4. The costs of the proceedings.
What are the pecuniary liabilities of persons

criminally liable?
They are:
1. The reparation of the damage caused.
2. Indemnification of the consequential damages.

PECUNIARY LIABILITIES Art. 38
628
3. Fine.
4. Costs of proceedings.
When is Art. 38 applicable?

It is applicable "in case the property of the offender should not be
sufficient for the payment of all his pecuniary liabilities." The order of
payment is provided in this article.
Hence, if the offender has sufficient or no property, there is no use for
Art. 38.
The order of payment of pecuniary liabilities in Article

38 must be observed.
Thus, in robbery with violence against persons, A inflicted upon B
serious physical injuries and took the latter's watch and ring worth f*l,250. As
a result of the physical injuries inflicted, B was hospitalized and was not able
to attend to his work for one month. For hospital bills, he paid P500. For his
failure to earn his salary for one month, he lost r*300. If A, after conviction,
had only property not exempt from execution worth r*l,000, it shall be applied
to the payment of the watch and ring, which could not be returned, because
they are covered by the "reparation of the damage caused" and it is No. 1 in
the order of payment.
The hospital bills in the amount of r*500 and the salary which he failed
to earn in the sum of f*300 are covered by the "indemnification of the
consequential damages" which is only No. 2 in the order of payment.
Courts cannot disregard the order of payment.

When respondent judge permitted the accused to pay the r*500.00 fine
ahead and postponed the payment of the indemnity of r*l,900.00 to some other
date, he obviously deviated from the express mandates of the law. Indemnity
is No. 2 and fine is No. 3 in the order of payment. What was done was exactly
the opposite of what the law ordained. What the court should have done was
to commit the accused to jail for a period not exceeding six months (Art. 39,
par. 2) upon the nonpayment on the date scheduled for its execution of the
indemnity imposed by the sentence. (Domalaon vs. Yap, C.A., 59 O.G. 6675)
629
Art. 39 SUBSIDIARY PENALTY
There is reparation in the crime of rape when the dress of the woman was torn.
In a case where the accused was convicted of rape, that part of the
judgment ordering the defendant to pay the value of the woman's torn
garments is reparation for the damage caused to her property and is distinct
from indemnity. (U.S. vs. Yambao, 4 Phil. 204, 206) Liability of
conjugal partnership assets.
Fines and indemnities imposed upon either husband or wife may be
enforced against the partnership assets after the responsibilities enumerated
in Article 161 of the Civil Code have been covered, if the spouse who is bound
should have no exclusive property or if it should be insufficient, which
presupposes that the conjugal partnership is still existing. (People vs.
Lagrimas, No. L-25355, Aug. 28, 1969, 29
SCRA 153, 158)
Art. 39. Subsidiary penalty. — If the convict has no property with which
to meet the fine mentioned in paragraph 3 of the next preceding Article, he
shall be subject to a subsidiary personal liability at the rate of one day for e a c
h eight pesos, subject to the following rules:
1. If the principal penalty imposed be prision correccional or arresto and
fine, he shall remain under confinement until his fine referred in the preceding
paragraph is satisfied, but his subsidiary imprisonment shall not e x c e e d
one-third of the term of the sentence, and in no case shall it continue for more
than one year, and no fraction or part of a day shall be counted against the
prisoner.
2. When the principal penalty imposed be only a fine, the subsidiary
imprisonment shall not e x c e e d six months, if the culprit shall have b e e n
prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if
for a light felony.
3. When the principal penalty imposed is higher than prision

correccional no subsidiary imprisonment shall be imposed upon the culprit.
Art. 39
4. If the principal penalty imposed is not to be executed by confinement

in a penal institution, but such penalty is of fixed duration, the convict, during
the period of time established in the preceding rules, shall continue to suffer
the same deprivations as those of w h i c h the principal penalty consists.
630
SUBSIDIARY PENALTY
5.) The subsidiary personal liability w h i c h the convict m a y h a v e
suffered by reason of his insolvency shall not relieve him from the fine in case
his financial circumstances should improve. (As amended by Rep. Act No. 5465,
which lapsed into law on April 21,1969.)
What is subsidiary penalty?

It is a subsidiary personal liability to be suffered by the convict who has
no property with which to meet the fine, at the rate of one day for each eight
pesos, subject to the rules provided for in Article 39.
Judgment of conviction must impose subsidiary

imprisonment.
An accused cannot be made to undergo subsidiary imprisonment in case
of insolvency to pay the fine imposed upon him when the subsidiary
imprisonment is not imposed in the judgment of conviction. (Ramos vs.
Gonong, No. L-42010, Aug. 31, 1961, 72 SCRA 559, 565)
No subsidiary penalty for nonpayment of other pecuniary

liabilities.
As Article 39 is now worded, there is no subsidiary penalty for
nonpayment of: (1) the reparation of the damage caused, (2) indemnification
of the consequential damages, and (3) the costs of the proceedings. (See Ramos
vs. Gonong, supra, at 566)
Retroactive application of RA 5465.

In that it eliminated the pecuniary liabilities of the accused, other than
fine, in Article 39 of the Revised Penal Code, Rep. Act 5465 is favorable to
the accused. It has retroactive application. (Buiser vs.
People, No. L-32377, Oct. 23,1982,117 SCRA 750, 752, citing People vs. Doria,
55 SCRA 435)
"If the convict has no property with which to meet the

fine."
Article 39 applies only when the convict has no property with which to
meet the fine mentioned in paragraph 3 of Article 38.
631
It would seem that the convict, who has property enough to meet the
fine and not exempt from execution, cannot choose to serve the subsidiary
penalty, instead of paving for the fine.
A fine, whether imposed as a single or as an alternative penalty, should
not and cannot be reduced or converted into a prison term. There is no rule
for transmutation of the amount of a fine into a term of imprisonment. (People
vs. Dacuycuy, G.R. No. 45127, May 5,1989, 173 SCRA 90, 101)
The word "principal" should be omitted.

The word "principal" referring to the penalty imposed is not the correct
translation. The words used in Spanish "cuando la pena impuesta" (when the
penalty imposed) should be controlling. (People vs. Concepcion, 59 Phil. 518,
522)
Subsidiary imprisonment is not an accessory penalty.

Subsidiary imprisonment is not an accessory penalty. That subsidiary
imprisonment is a penalty, there can be no doubt, for according to Article 39,
it is imposed upon the accused and served by him in lieu of the fine which he
fails to pay on account of insolvency.
Therefore, the culprit cannot be made to undergo subsidiary
imprisonment unless the judgment expressly so provides. (People vs. Fajardo,
65 Phil. 539, 542)
Illustration:
A was convicted of bribery and sentenced to 2 months and 1 day of
arresto mayor as minimum, to 1 year, 8 months and 21 days oiprision
correccional, as maximum, to pay a fine of P40.00, with the accessories of the
law, and to pay the costs. Since the decision does not provide for subsidiary
imprisonment in the event of inability of
632
SUBSIDIARY PENALTY Art. 39
A to pay the fine of f*40.00, A cannot be required to serve subsidiary

imprisonment, if he appears to be insolvent.
Article 73 of the Revised Penal Code provides that "Whenever the
courts shall impose a penalty which, by provision of law, carries with it other
penalties, according to the provisions of Articles 40, 41, 42, 43, 44, and 45 of
this Code, it must be understood that the accessory penalties are also imposed
upon the convict." Subsidiary imprisonment is not covered by any of those
articles. (People vs. Jarumayan,
C.A., 52 O.G. 244)
Rules as to subsidiary imprisonment:

1. If the penalty imposed is prision correccional or arresto and fine —
subsidiary imprisonment, not to exceed 1/3 of the term of the
sentence, and in no case to continue for more than one year.
Fraction or part of a day, not counted.
2. When the penalty imposed is fine only — subsidiary
imprisonment, not to exceed 6 months, if the culprit is prosecuted
for grave or less grave felony, and not to exceed 15 days, if
prosecuted for light felony.
3. When the penalty imposed is higher than prision correctional —
no subsidiary imprisonment.
4. If the penalty imposed is not to be executed by confinement, but of
fixed duration — subsidiary penalty shall consist in the same
deprivations as those of the principal penalty, under the same
rules as in Nos. 1, 2 and 3 above.
5. In case the financial circumstances of the convict should improve,
he shall pay the fine, notwithstanding the fact that the convict
suffered subsidiary personal liability therefor.
Examples of the application of the rules:

(1) Rule 1 (Applicable only when the penalty imposed is imprisonment not
exceeding 6 years): A is convicted of falsification by private
individual (Art. 172) and sentenced to 4 years, 9 months and 10
days of prision correccional, as the maximum term of the
indeterminate penalty, and to pay a fine of f*4,000.00.
SUBSIDIARY PENALTY
633
Art. 39
If A has no property with which to meet the fine, he will
have to suffer subsidiary imprisonment at the rate of one day for
each P8.00 which he cannot pay, but not to exceed 365 days,
computed as follows:
365 days in one year
x4 years
1,460 — days in 4 years
270 — days in 9 months
10 — days
3) 1,740 — days in 4 years, 9 months and 10 days 580 —
days, which represent 1/3 of the penalty imposed
P8.00) P4,000.00 - amount of fine
500 — days, which are less than 1/3 of the penalty
imposed (580 days)
Although the quotient of 500 days does not exceed 1/3 of the term of the
penalty imposed, yet A can be made to suffer subsidiary imprisonment only
for 365 days, because "in no case shall it continue for more than one year."
The subsidiary imprisonment not to exceed one-third of the penalty imposed and
not to exceed one year.
When the quotient, after dividing the amount of the fine by P8.00, is
one year or less and such quotient does not exceed 1/3 of the penalty imposed,
the whole period of imprisonment represented by the quotient must be served
by the convict as subsidiary penalty.
Illustration:
A is convicted of a crime and sentenced to 3 years of prision
correccional, as the maximum term of the indeterminate penalty, and to
pay a fine of P2,000.00, which A could not pay. P2,000.00 -r P8.00 = 250
days. Since 1/3 of the penalty imposed is 1 year and the quotient is 250
days, which does not exceed 1 year, all the 250 days imprisonment must
be served by A for nonpayment of the fine, in addition to the penalty of 3
years for the crime he committed.
Where the defendant was sentenced to 21 days of imprisonment and a

fine of f*l,000.00, the subsidiary imprisonment cannot exceed 7 days.
Pl.OOO.OO H- F8.00 = 125 days. But since the subsidiary imprisonment
634
cannot exceed 1/3 of the penalty imposed, he cannot be required to serve all
the 125 days of imprisonment for failure to pay the fine.
No subsidiary imprisonment if the indemnity is less than P8.00.

If the indemnity which the accused should pay is less than P8.00, no
subsidiary imprisonment should be imposed for its non-payment. (See People
vs. Abad, C.A., 36 O.G. 653 and U.S. vs. Ballesteros, 1
Phil. 208)
(2) Rule 2 (Applicable when the penalty imposed is fine only): A is
sentenced to pay a fine of P800.00 for a crime punishable by a fine
not exceeding f*2,000.00. In case of insolvency, A shall suffer
subsidiary imprisonment at the rate of one day for every P8.00
which he cannot pay. To divide P800.00 by P8.00 will be 100 days.
Since A is prosecuted for a less
grave felony, the fine provided by law being not less than P200.00
and not more than f»6,000.00 (Art. 26), the duration of his
subsidiary imprisonment shall be all the 100 days or 3 months and
10 days, the same not exceeding 6 months.
But suppose A is sentenced to pay a fine of P160.00 for a
crime punishable by a fine not exceeding P200.00, what is the
duration of the subsidiary imprisonment? Why? It cannot exceed
15 days, because he is prosecuted for a light felony, the fine
provided by law not exceeding P200.00. (Art. 9)
When the penalty is fine only, the phrases, "if the culprit shall have been
prosecuted for a grave or less grave felony" and "if for a light felony," are
controlling.
When the penalty prescribed by the Code for the crime is
fine only, the duration of the subsidiary penalty is based on the
classification of the felony.
When the fine provided by the Code, as the penalty for the
offense, is exactly P200.00, apply Art. 9 in determining the
classification of the felony, because that article, in
635
denning light felony, states that the fine is "not exceeding

P200.00." When the amount of the fine fixed by the Code as the
penalty for the offense is more than P200.00, apply Art. 26 to
determine the classification of the felony.
(3) Rule 4: A is sentenced to 4 years, 9 months and 10 days of destierro
and to pay a fine of r*4,000.00. If A has no money with which to
pay the fine, he shall suffer an additional period of destierro at the
same rate of one day for every P8.00. The same rule is to be
applied when the principal penalty is suspension and fine.
The penalty imposed must be (1) prision correccional, (2)

arresto mayor, (3) arresto menor, (4) suspension, (5)
destierro,
or (6) fine only.
Hence, if the penalty imposed by the court is not one of them, subsidiary
penalty cannot be imposed. There is no subsidiary penalty, if the penalty
imposed by the court is prision mayor, reclusion temporal, or reclusion
perpetua.
Six years and one day is prision mayor.

Will there be subsidiary imprisonment if the penalty imposed is 6 years
and 1 day?
No, because when one day is added to 6 years, it raises the prison
sentence from prision correccional to prision mayor; hence, no subsidiary
imprisonment. (Rosares vs. Director of Prisons, 85 Phil. 730, 731)
Additional penalty for habitual delinquency should be

included in determining whether or not subsidiary penalty
should be imposed.
Even if the penalty imposed is not higher than prision correccional, if the
accused is a habitual delinquent who deserves an additional penalty of 12
years and 1 day of reclusion temporal, there is no subsidiary imprisonment.
(People vs. Concepcion, 59 Phil. 518, 522)
"If the principal penalty imposed."

When the penalty prescribed for the offense is imprisonment, it is the
penalty actually imposed by the Court, not the penalty provided for by the
636
Code, which should be considered in determining whether or not subsidiary
penalty should be imposed.
Thus, even if the penalty provided for by the Code for the crime is
prision mayor but there are two mitigating circumstances without any
aggravating circumstance (Art. 64, par. 5), and the court imposes 2 years, 11
months and 11 days of prision correccional, subsidiary penalty may be
imposed for nonpayment of the fine.
Penalty not to be executed by confinement, but has

fixed duration.
Under Art. 236, the penalty of suspension and fine from f*200 to P500
shall be imposed upon any person who shall assume the performance of the
duties and powers of any public office without first being sworn in or having
given bond required by law. Such suspension shall last until he shall have
complied with the formalities. If he cannot pay the fine, although he already
complied with the formalities required by said Art. 236, his suspension shall
continue until the amount of the fine is covered at the rate of one day
suspension for every P8.00.
Penalty not to be executed by confinement and has

no fixed duration.
Example:
The penalty is fine not exceeding P200.00 and censure. (Art. 365, par. 4)
If the accused cannot pay the fine, there is no subsidiary liability,
because the penalty of censure has no fixed duration and is not to be executed
by confinement.
Rule No. 1, Art. 39, specifically mentions the penalty of prision
correccional or arresto and fine"; Rule No. 2 of the same article speaks of fine
only; and Rule No. 4 mentions penalty of "fixed duration." Hence, when fine
goes with a penalty not to be executed by imprisonment or destierro and which
has no fixed duration, there is no subsidiary penalty for nonpayment of the
fine. (People vs. Laure, 19 CAR [2s] 977, 984)
In a case where the accused was charged with the crime of slight
physical injuries and was sentenced by the trial court to pay Art. 39
a fine of 530.00 and public censure, with subsidiary imprisonment in case of

insolvency, the Court of Appeals held that the trial court is not authorized to
impose subsidiary imprisonment in case of insolvency.
(People vs. Garcia, CA-G.R. No. 25764-R, 56 O.G. 4938)
637
SUBSIDIARY PENALTY
The subsidiary penalty is "the same deprivations as

those of which the principal penalty consists."
If the penalty imposed is imprisonment, the subsidiary penalty must be
imprisonment also. If the penalty imposed is destierro, the subsidiary penalty
must be destierro also. If the penalty imposed is suspension, the subsidiary
penalty must be suspension also. This is so, because paragraph No. 4 of Art. 39
states that the convict "shall continue to suffer the same deprivations as those
of which the principal penalty consists."
The convict who served subsidiary penalty may still

be required to pay the fine.
It will be noted from paragraph No. 5 of Art. 39, as amended, that the
convict who suffered subsidiary penalty for nonpayment of the fine is not
relieved from paying the fine should his financial circumstances improve.
Before Art. 39 was amended, once a convict suffered subsidiary penalty
for nonpayment of the fine, he was forever relieved from paying the fine.
Subsidiary imprisonment is not imprisonment for

debt.
The laws which prohibit imprisonment for debt relate to the
imprisonment of debtors for liability incurred in the fulfillment of contracts,
but not to the cases seeking the enforcement of penal statutes that provide for
the payment of money as a penalty for the commission of crime. (U.S. vs.
Cara, 41 Phil. 828, 834-837)
Thus, the civil liability arising from libel is not a "debt" within the
purview of the constitutional provision against imprisonment for nonpayment
of "debt." Insofar as said injunction is concerned, "debt" means an obligation
to pay a sum of money "arising from contract," express or implied. In addition
to being part of the penalty, the civil liability in libel arises from a tort or
crime; hence, from law. As a consequence, the subsidiary imprisonment for
nonpayment of said liability does not violate the constitutional injunction.
(Quemuel vs. Court of Appeals, No. L-22794, Jan. 16, 1968, 22 SCRA 44, 47)
No subsidiary penalty in the following cases:

1. When the penalty imposed is higher than prision correccional.
(Par. 3, Art. 39; People vs. Bati, G.R. No. 87429, Aug. 27,1990,189
SCRA 97,106; People vs. Domingo, G.R. No. 82375, April
18,1990,184 SCRA 409,415; Humilde vs.
638
Pablo, Adm. Matter No. 604-CFI, Feb. 20,1981,102 SCRA 731,
732)
2. For failure to pay the reparation of the damage caused,
indemnification of the consequential damages, and the costs of the
proceedings.
3. When the penalty imposed is fine and a penalty not to he executed
by confinement in a penal institution and which has no fixed
duration.
Subsidiary imprisonment under special law.

Act No. 1732 of the Philippine Commission provides for the rules in case
the court shall impose a fine as the whole or as a part of the punishment for
any criminal offense made punishable by any special law.
Rules:
1. When the court merely imposes a fine, the subsidiary liability
shall not exceed 6 months, at the rate of one day of imprisonment
for every P2.50.
2. In case both fine and imprisonment are imposed, the subsidiary
liability shall not exceed 1/3 of the term of imprisonment, and in
no case shall it exceed 1 year.
3. In case the imprisonment is for more than 6 years in addition to a
fine, there shall be no subsidiary imprisonment.
4. When a fine is imposed for violation of any municipal ordinance
or ordinances of the City of Manila, the rate is one day for every
PI.00, until the fine is satisfied, provided that the total subsidiary
imprisonment does not exceed 6
Art. 39
months, if the penalty imposed is fine alone; and not more than
1/3 of the principal penalty, if it is imposed together with
imprisonment.
The provisions of Act No. 1732 are applicable to offenses made
punishable by acts of the Philippine Legislature. (U.S. vs. Esteban, 42 Phil. 1,
2)
639
SUBSIDIARY PENALTY
Act No. 1732 is not applicable to offenses made

punishable by the Act of the United States Congress.
Subsidiary imprisonment cannot be imposed on the defendant convicted
of violating Sec. 2 of the Act of U.S. Congress of July 16, 1918, for failure to
pay the fine, because said Act contains no provision authorizing the imposition
of subsidiary penalty. Neither Art. 39 of the Revised Penal Code nor Act No.
1732 is applicable. (People vs. Tan, 51 Phil. 71, 75)
Since the Tax Code does not provide for the

imposition of a subsidiary penalty in case of
insolvency, no subsidiary imprisonment can be
imposed.
Where the defendant is charged with having failed to pay on or before
May 15 or August 15 of certain years his taxes, as required by paragraphs (b)
and (c), Section 51 of the Tax Code, the provision of law relative to the
imposition of subsidiary imprisonment in case of insolvency is Section 353 of
the Tax Code. The subsidiary penalty provided in said section refers only to
non-payment of the fine and not of the taxes due. In other words, while the
appealed decision is correct as regards the imposition of the subsidiary
imprisonment in case of failure to pay the fine, the same is erroneous with
respect to the imposition of such subsidiary penalty for nonpayment of taxes
due. (People vs. Balagtas, 105 Phil. 1362-1363 [Unrep.])
No subsidiary imprisonment for nonpayment of income tax.

As the Internal Revenue Code fails to provide for the collection of the
income tax in criminal proceedings, conviction for failure or neglect to pay
such tax does not include payment of indemnity to the State in the amount of
the tax not paid, nor can subsidiary imprisonment be imposed in case of
insolvency. (People vs. Arnault, 92 Phil.
252, 262)
Subsidiary imprisonment under special laws.

Persons convicted of violation of special laws are liable to subsidiary
imprisonment in case of insolvency in the payment of indemnity, except where
the indemnity consists in unpaid internal revenue tax. (People vs. Domalaon,
C.A., 56 O.G. 5072, citing People vs. Moreno,
60 Phil. 712 and People vs. Arnault, 92 Phil. 252)
Subsidiary imprisonment, like accessory penalties, not

essential in determining jurisdiction.
640
The accused was prosecuted for violation of the Usury Law. The penalty
for such violation is a fine of not less than f*50 nor more than P200, or
imprisonment for not less than 10 days nor more than 6 months, or both, and
also the return of the entire sum received as interest from the party aggrieved,
and in case of nonpayment to suffer subsidiary imprisonment. It was argued
by the Solicitor General that in view of the possible subsidiary imprisonment
which must be added to the principal penalty of 6 months, the justice of the
peace court has no jurisdiction in cases involving the Usury Laws.
Held: The return of the usurious interest is a civil liability and is not a
part of the penalty provided for the offense. (People vs. Caldito,
72 Phil. 262, 264-265)
What determines the jurisdiction of the Court in criminal cases is the
extent of the penalty which the law imposes for the crime charged in the
information or complaint. (People vs. Fajardo, 49 Phil. 206, 210)
It is settled rule that subsidiary imprisonment, like accessory penalties,
is not essential in the determination of the criminal jurisdiction of a court.
(People vs. Caldito, supra, at 267)
The decision need not state that there should not be any
subsidiary imprisonment when the law forbids it.
Counsel for appellee submits that, "In view of the principal penalty
imposed, the decision should state that there should not be any subsidiary
imprisonment in case of insolvency." The recommendation is not well taken
because Article 39, No. 3, Revised Penal Code provides that when the
principal penalty is higher than prision correccional, no subsidiary
imprisonment in case of insolvency shall
641
PENALTIES IN WHICH OTHER ACCESSORY
PENALTIES ARE INHERENT
Arts. 40-43
be imposed. Hence, it is not necessary for the decision to state what the law
expressly forbids. We are aware of the practice of courts in making such
statement although unnecessary and find nothing wrottg in the superfluity.
However, a judgment which does not include said pronouncement is in
accordance with law. (People vs. Rivera, 1 G.A.
Rep. 38)
Section Three. — Penalties in which other accessory penalties are

inherent
Art. 40. Death — Its accessory penalties. — The death penalty, w h e n it

is not executed by reason of commutation or pardon shall carry with it that of
perpetual absolute disqualification and that of civil interdiction during thirty
years following the date of sentence, unless such accessory penalties have been
expressly remitted in the pardon.
Art. 41. Reclusion perpetua and reclusion temporal — Their accessory

penalties. — The penalties of reclusion perpetua and reclusion temporal shall
carry with them that of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual absolute disqualification
which the offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.
Art. 42. Prision mayor — Its accessory penalties. — The penalty of

prision mayor shall carry with it that of temporary absolute disqualification
and that of perpetual special disqualification from the right of suffrage w h i c
h the offender shall suffer although pardoned as to the principal penalty,
unless the same shall have been expressly remitted in the pardon.
Art. 43. Prision correccional — Its accessory penalties. — The penalty of

prision correccional shall carry with it that of suspension from public office,
from the right to follow a profession Arts. 40-44
642
or calling, and that of perpetual special disqualification from the right of
suffrage, if the duration of said imprisonment shall exceed eighteen months.
The offender shall suffer the disqualification provided in this article although
pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon.
Art. 44. Arresto — Its accessory penalties. — The penalty of arresto shall
carry with it that of suspension of the right to hold office and the right of
suffrage during the term of the sentence.
Outline of accessory penalties inherent in principal

penalties:
1. Death, when not executed by reason of commutation or pardon —
(1) perpetual absolute disqualification; and (2) civil interdiction
for 30 years, if not expressly remitted in the pardon.
2. Reclusion perpetua and reclusion temporal — (1) civil interdiction
for life or during the sentence; and (2) perpetual absolute
disqualification, unless expressly remitted in the pardon of the
principal penalty.
3. Prision mayor — (1) temporary absolute disqualification; and (2)
perpetual special disqualification from suffrage, unless expressly
remitted in the pardon of the principal penalty.
4. Prision correccional — (1) suspension from public office,
profession or calling, and (2) perpetual special disqualification
from suffrage, if the duration of imprisonment exceeds 18 months,
unless expressly remitted in the pardon of the principal penalty.
Note: There is perpetual special disqualification from suffrage, only
when the duration of the imprisonment exceeds 18 months.
5. Arresto — suspension of the right to hold office and the right of
suffrage during the term of the sentence.
Arts. 40-44
Destierro has no accessory penalty.
643
The Code does not provide for any accessory penalty for destierro^
Is there accessory penalty attached to death penalty?

None, for obvious reasons.
It is only when the death penalty is not executed by reason of
commutation or pardon that the accessory penalty provided for in Art. 40
shall be suffered by the convict.
"Unless expressly remitted in the pardon."

The accessory penalties mentioned in Articles 40 to 43 must be suffered
by the offender, although pardoned as to the principal penalties. To be
relieved of the accessory penalties, the same must be expressly remitted in the
pardon.
Persons who served out the penalty may not have the
right to exercise the right of suffrage.
Absolute pardon for any crime for which one year imprisonment or
more was meted out restores the prisoner to his political rights. Where the
penalty is less than one year, disqualification does not attach, except when the
crime committed is one against property. For illustrations: (1) A was
prosecuted for physical injuries and condemned to suffer 10 months
imprisonment. Though not pardoned, he is not disqualified. (2) B was
prosecuted for theft and sentenced to imprisonment for 10 months. He cannot
vote unless he is pardoned.
(3) C was prosecuted and sentenced to 4 years for physical injuries, or estafa.
C has to be pardoned if he is to exercise the right of suffrage. The nature of
the crime is immaterial when the penalty imposed is one year imprisonment or
more. (Pendon vs. Diasnes, 91 Phil. 848, explaining paragraphs a and b of
Section 99 of Rep. Act No. 180, as amended by Rep. Act No. 599)
Accessory penalties need not be expressly imposed;

they are deemed imposed.
The accessory penalties are understood to be always imposed upon the
offender by the mere fact that the law fixes a certain penalty for a given crime.
644
CONFISCATION AND FORFEITURE Art. 45
Article 73 provides that whenever the courts shall impose a penalty
which, by provision of law, carries with it other penalties, according to the
provisions of Articles 40, 41, 42, 43, 44, and 45 of
this Code, it must be understood that the accessory penalties are also imposed
upon the convict.
Thus, when the law provides that those guilty of homicide shall be
punished by reclusion temporal, it is understood that it includes civil
interdiction during the period of the sentence and perpetual absolute
disqualification.
Accessory penalties do not determine jurisdiction.

The accused was charged with estafa, and was sentenced to arresto
mayor with the accessory penalty of suspension from public office and the
right of suffrage during the term of his sentence by the
justice of the peace court.
The accused raised the question of jurisdiction of the justice of the peace
court.
Held: The justice of the peace court has jurisdiction. The accessory
penalties do not affect the jurisdiction of the court in which the information is
filed, because they do not modify, or alter the nature of the penalty provided
by the law. What determines jurisdiction in criminal cases is the extent of the
principal penalty which the law imposes for the crime charged in the
information or complaint. (People vs. Fajardo, supra; People vs. Caldito,
supra)
Note: Under Sec. 2 of R.A. No. 7691, the MTC has exclusive original
jurisdiction over offenses punishable with imprisonment not
exceeding 6 years irrespective of the amount of the fine, and
regardless of other imposable accessory or other penalties,
including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value or
amount thereof.
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the

crime. — Every penalty imposed for the commission of a felony shall carry
with it the forfeiture of the proceeds of the crime and the instruments or
tools with which it was committed.
Art. 45
645
CONFISCATION AND FORFEITURE
Such proceeds and instruments or tools shall be confiscated and
forfeited in favor of the Government, unless they be the property of a third
person not liable for the offense, but those articles which are not subject of
lawful commerce shall be destroyed.
Outline of the provision of this article.

1. Every penalty imposed carries with it the forfeiture of the
proceeds of the crime and the instruments or tools used in
2. The proceeds and instruments or tools of the crime are
confiscated and forfeited in favor of the Government.
3. Property of a third person not liable for the offense, is not subject
to confiscation and forfeiture.
4. Property not subject of lawful commerce (whether it belongs to
the accused or to third person) shall be destroyed.
No forfeiture where there is no criminal case.

Where the slot machines were seized under a search warrant and there
is no criminal case as yet against their operator for violation of the gambling
law, and there is only a civil case brought by the operator to enjoin the
municipal officials from banning the operation of the slot machines, the court
cannot order the destruction of the machines as not subject of lawful
commerce. (Philips vs. Municipal
Mayor, 105 Phil. 1344 [Unrep.], No. L-9183, May 30, 1959)
The ruling is based on the phrase "every penalty imposed." A penalty
cannot be imposed unless there is a criminal case filed, the case is tried, and
the accused is convicted.
The forfeiture of the proceeds or instruments of the crime cannot be
ordered if the accused is acquitted, because no penalty is imposed.
Courts cannot order the confiscation of property

belonging to a third person if the latter is not indicted.
Under Article 45 of the Revised Penal Code, which authorizes the
confiscation and forfeiture of the proceeds of the crime and the instruments or
tools with which it was committed except when they are "the property of a
third person not liable for the offense," the court cannot order the forfeiture
of goods the owner of which is not indicted although there is sufficient ground
646
CONFISCATION AND FORFEITURE Art. 45
to hold him guilty of the acts for which the accused has been convicted.
(People vs. Delgado, C.A., 64 O.G. 785)
Where the smuggled goods are owned by a third person, they cannot be
ordered forfeited as instrument of the crime because Article 45 of the Revised
Penal Code authorizes the confiscation and forfeiture of the proceeds of the
crime and the instrument or tools with which it was committed except when
they are "the property of a third person not liable for the offense, although the
owner could have been convicted if he had been indicted with the accused."
(People vs.
Delgado, 9 CAR [2s], 960, 979-980)
Third party ownership was considered established under the following
set of facts: that the car in question was registered in the name of the third
party, who, in the absence of strong evidence to the contrary, must be
considered as the lawful owner thereof; that the only basis in concluding that
the said car belongs to the accused were the latter's statements during the trial
of the criminal case to that effect; that the said statements were not, however,
intended to be, nor could constitute, a claim of ownership over the car adverse
to his mother, who is the third party, but were made simply in answer to
questions propounded in court for the sole purpose of establishing the identity
of the defendant who furnished the car used by the appellants in the
commission of the crime; that the chattel mortgage on the car and its
assignment in favor of the intervenor, the assignee of the chattel mortgage,
were made several months before the date of the commission of the crimes
charged, which circumstance forecloses the possibility of collusion to prevent
the State from confiscating the car. (People vs. Jose, No. L-28232, Feb. 6, 1971,
37 SCRA 450, 481)
Instruments of the crime belonging to innocent third

person may be recovered.
U.S. vs. Bruhez
(28 Phil. 305)
Facts: Lorenzo Uy was an employee and during the absence of his
employer and without the latter's knowledge, Lorenzo Uy drew out
647
Art. 45 CONFISCATION AND FORFEITURE
a check for f*3,500 against the bank account of the employer and used
the money consisting of seven P500 bills to bribe Bruhez.
Held: Where the money used to bribe a customs official to permit
the illegal importation of opium belongs to an innocent third party, it
should not be confiscated. The person who owns the money used in the
commission of the crime has a right to intervene in the proceeding in
the court having jurisdiction of the offense for the purpose of
determining his rights in the premises.
Confiscation can be ordered only if the property is

submitted in evidence or placed at the disposal of the
court.
U.S. vs. Filart
(30 Phil. 80)
Facts: The accused planned to sell 450 tickets, each representing a

chance on an automobile to be given as a prize to the one who would
draw the lucky number. The trial court ordered the confiscation of the
automobile and the money obtained from the sale of the tickets which
were not before the court or in the possession of any of the parties to the
action at the time the order of confiscation was made.
Held: Where it appears that in a prosecution for violation of the
Gambling Law, the automobile as well as the money used in committing
such violation was not in the possession of the court, or of any of the
parties to the action, the court has no jurisdiction to order the
confiscation of the property.
Articles which are forfeited, when the order of

forfeiture is already final, cannot be returned even in
case of an acquittal.
Com. of Customs vs. Encarnacion
(95 Phil. 439)
Facts: A crew member of the PAL, coming from Madrid, brought

with him certain dutiable articles. As they were not declared, the
collector of Customs decreed that said articles be forfeited to the
648
Art. 45
Government. The order of forfeiture became final. Said crew member
was charged with violation of the Revised Administrative Code for his
failure to declare dutiable articles, but after trial, he was acquitted on
the ground of insufficiency of evidence, the Court ordering at the same
time the Bureau of Customs to return to him said articles upon prior
payment of the customs duties due thereon.
Held: The respondent judge erred in ordering the release of the

dutiable articles, because said articles already ceased to belong to the
crew member, as they had been forfeited to the Government.
Confiscation and forfeiture are additional penalties.

After several defendants had pleaded guilty to a charge of gambling, the
court sentenced each of them to pay a fine. Immediately after the sentence was
read to them, they paid the fine. Subsequently, the fiscal discovered that a
certain sum of money used by the defendants in gambling had not been
ordered confiscated. He moved the court to modify the judgment by issuing an
order confiscating the money. Can the court properly issue such order? No,
because the confiscation of the money is an additional penalty and as the
sentence has become final, the court cannot modify, alter or change that
sentence. (U.S. vs. Hart, 24 Phil. 578, 581-582)
This Court has held in People vs. Alejandro Paety Velasco, 100 Phil. 357,
that where the penalty imposed did not include the confiscation of the dollars
involved, the confiscation or forfeiture of the said dollars as is sought in the
Government's appeal, would be an additional penalty and would amount to an
increase of the penalty already imposed, thereby placing the accused in double
jeopardy. And under Rule 118 (now Rule 122), Section 2, of the Rules of
Court, the Government cannot appeal in a criminal case if the defendant
would be placed thereby in double jeopardy. (People vs. Sanchez, 101 Phil.
745, 747-748)
When the accused has appealed, confiscation and

forfeiture not ordered by the trial court, may be imposed
by the appellate court.
Article 45 of the Revised Penal Code (providing for the confiscation or
forfeiture of the instruments or tools employed in the commission of a crime)
has repeatedly been applied to crimes penalized by special laws, in default of a
contrary mandate therein. While this Court in the case of People vs. Paet, 53
O.G. 668 and People vs. Sanchez, supra, refused to entertain the Government's
649
appeal from the refusal of the Court to decree such a forfeiture, it did so, not
because Art. 45 of the
Penal Code did not apply but exclusively on the ground that in a criminal
case wherein the accused had not appealed, no appeal can be interposed by
the Government with a view to increasing the penalty Art. 45
imposed by the Court below; and confiscation being an additional penalty, the
accused would be placed twice in jeopardy of punishment for the same
offense, should the Government's appeal be entertained. But in the present
case, the accused's own appeal has removed all bars to the review and
correction of the penalty imposed by the court below, even if an increase
thereof should be the result. Judgment modified by ordering that the
unlicensed money found in the possession of the appellant be declared
forfeited to the Government. (People vs.
Exconde, 101 Phil. 1125, 1133-1134)
Forfeiture and confiscation of instruments and proceeds of the offense
are accessory penalties. Are they not deemed imposed?
Chapter Four APPLICATION OF PENALTIES
Section One. — Rules for the application of penalties to the persons

criminally liable and for the graduation of the
same.
Art. 46. Penalty to be imposed upon principals in general. — The penalty

prescribed by law for the commission of a felony shall be imposed upon the
principals in the commission of such felony.
Whenever the la w prescribes a penalty for a felony in general terms, it
shall be understood as applicable to the consummated felony.
Penalty prescribed in general terms — general rule.

The penalty prescribed by law in general terms shall be imposed:
1. Upon the principals.

2. For consummated felony.
In Art. 249, for instance, the penalty of reclusion temporal is provided
for the crime of homicide. That penalty is intended for the
principal in a consummated homicide.
Exception — when the law fixes a penalty for

frustrated or attempted felony.
The exception is when the penalty to be imposed upon the principal in
frustrated or attempted felony is fixed by law.
649
Whenever it is believed that the penalty lower by one or two degrees

corresponding to said acts of execution is not in proportion to the wrong done,
the law fixes a distinct penalty for the principal in frustrated or attempted
felony.
Art. 47 WHEN DEATH PENALTY NOT TO BE IMPOSED
Example: The penalty prescribed by the Code for robbery with

homicide is reclusion perpetua to death (Art. 294, No. 1);
but the penalty to be imposed upon the offender in case
the homicide was consummated but the robbery was
attempted or frustrated is not two degrees or one degree
lower than said penalty, but reclusion temporal in its
maximum period to reclusion perpetua as prescribed in
Art. 297.
Graduation of penalties by degrees or by periods.

The graduation of penalties by degrees refers to stages of execution
(consummated, frustrated or attempted) and to the degree of the criminal
participation of the offender (whether as principal, accomplice, or accessory).
The division of a divisible penalty into three periods, as maximum,
medium and minimum, refers to the proper period of the penalty which
should be imposed when aggravating or mitigating circumstances attend the
Art. 47. In what cases the death penalty shall not be imposed;
Automatic review of death penalty cases. — The death penalty shall be imposed
in all cases in w h i c h it must be imposed under existing laws, except w h e n
the guilty person is below (18) years of age at the time of the commission of the
crime or is more than seventy years of age or w h e n upon appeal or
automatic review of the case by the Supreme Court, the required majority
vote is not obtained for the imposition of the death penalty, in w h i c h cases
the penalty shall be reclusion perpetua.
In all cases where the death penalty is imposed by the trial court, the
records shall be forwarded to the Supreme Court for automatic review a n d j
u d g m e n t by the court en banc, within twenty (20) days but not earlier than
fifteen (15) days after promulgation of the judgment or notice of denial of any
motion for n e w trial or reconsideration. The transcript shall also be
forwarded within ten (10) days after the filing thereof by the stenographic
reporter. (As amended by R.A. No.
7659)
Majority vote of the Supreme Court is required for the

imposition of the death penalty.
652
WHEN DEATH PENALTY NOT TO BE IMPOSED Art. 47
Since the Supreme Court is composed of 15 members (Sec. 4[1], Art.

VIII, 1987 Constitution), the vote of eight (8) members is required to impose
the death penalty.
Court of Appeals to Review Death Penalty Cases.

Up until now, the Supreme Court has assumed the direct appellate
review over all criminal cases in which the penalty imposed is death, reclusion
perpetua or life imprisonment (or lower but involving offenses committed on
the same occasion or arising out of the same occurrence that gave rise to the
more serious offense for which the penalty of death, reclusion perpetua, or life
imprisonment is imposed).
xxx xxx xxx

It must be stressed, however, that the constitutional provision is not
preclusive in character, and it does not necessarily prevent the Court, in the
exercise of its rule-making power, from adding an intermediate appeal or
review in favor of the accused.
In passing, during the deliberations among the members of the Court,
there has been a marked absence of unanimity on the crucial point of guilt or
innocent of herein appellant. Some are convinced that the evidence would
appear to be sufficient to convict; some would accept the recommendation of
acquittal from the Solicitor General on the ground of inadequate proof of guilt
beyond reasonable doubt. Indeed, the occasion best demonstrates the typical
dilemma, i.e., the determination and appreciation of primarily factual matters,
which the Supreme Court has had to face with in automatic review cases; yet,
it is the Court of Appeals that has aptly been given the direct mandate to
review factual issues.
While the Fundamental Law requires a mandatory review by the
Supreme Court of cases where the penalty imposed is reclusion perpetua, life
imprisonment, or death, nowhere, however, has it proscribed an intermediate
review. If only to ensure utmost circumspection before the penalty of death,
reclusion perpetua or life imprisonment is imposed, the Court now deems it
wise and compelling to provide in these cases a review by the Court of
Appeals before the case is elevated to the Supreme Court. Where life and
liberty are at stake, all possible avenues to determine his guilt or innocence
must be accorded an accused, and no care in the evaluation of the facts can
ever be overdone. A prior determination by the Court of Appeals on,
particularly, the factual issues, would minimize the possibility of an error of
judgment. If the Court of Appeals should affirm the penalty of death,
653
reclusion perpetua or life imprisonment, it could then render judgment

imposing the corresponding penalty as the circumstances so warrant, refrain
from entering judgment and elevate the entire records of the case to the
Supreme Court for the its final disposition. (People vs. Mateo, G.R. Nos.
147678-87, July 7, 2004)
The 1987 Constitution merely suspended the

Section 19(1), Article III of the 1987 Constitution provides that:
"Excessive fines shall not be imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall the death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the Congress hereafter provides
for it. Any death penalty already imposed shall be reduced to reclusion
perpetua." A reading of said Section will readily show that there is really
nothing therein which expressly declares the abolition of the death penalty.
The 1987 Constitution merely suspended the imposition of the death penalty.
(People vs. Munoz, G.R. Nos. 38969-70, Feb. 9,1989,170 SCRA 107, 120, 121)
R.A. No. 7659 restored the death penalty while R.A.

No. 9346 prohibited the imposition of the death
penalty.
Republic Act No. 7659 which took effect on 31 December 1993, restored
the death penalty for certain heinous crimes. Republic Act No. 9346 which was
enacted on June 24, 2006 prohibited the imposition of the death penalty, and
provided for the imposition of the penalty of reclusion perpetua in lieu of
death.
Death penalty is not imposed in the following cases:

1. When the guilty person is below 18 years of age at the time of the
2. When the guilty person is more than 70 years of age.

3. When upon appeal or automatic review of the case by the
Supreme Court, the vote of eight members is not obtained for the
Death penalty shall not be imposed when guilty person is

over 70 years.
654
At the time the trial court rendered its decision on March 11, 1967,
Manosca was 64 years old. He should now be 74. Article 47 of the Revised
Penal Code prohibits the imposition of the death penalty when the guilty
person is more than seventy years of age. (People vs. Alcantara, No. L-16832,
Nov. 18,1967, 21 SCRA 906, 913-914)
Exceptional cases in which the death penalty was not

imposed.
(1) Considering the circumstances under which the offense in
question was perpetrated in the light of the deplorable conditions
existing in the national penitentiary which had been previously
taken cognizance of by this Court, imposition of the penalty of
death is believed unwarranted. (People vs. Dela Cruz, No. L-
46397, May 16,1983,122 SCRA 227,231, citing People vs. Delos
Santos, 14 SCRA 4702 and People vs. Garcia, 96 SCRA 497)
(2) Appellant has already been detained for almost eight years now
and is presently confined at the National Penitentiary awaiting the
outcome of our review of the judgment rendered by the trial
court. The facts of the case tend to show that the crime was not
the result of any deliberate and well-formed nefarious conspiracy
of a criminal group. It was rather a crime clumsily conceived on
the spur of the moment. Appellant obviously did not fully realize
the gravity of the crime he and his companions were embarking
upon. The extreme penalty of death imposed on appellant is
inappropriate. Under the given circumstances, the penalty
that should be imposed should be reduced to life imprisonment.
(People vs. Marcos, No. L-65048, Jan. 9, 1987, 147 SCRA 204,
217)
What is the justification for death penalty?

Social defense and exemplarity justify the penalty of death.
Carillo has proved himself to be a dangerous enemy of society. The death
penalty imposed upon him is a warning to others. (People vs. Carillo, 85 Phil.
611,635)
Death penalty not cruel and unusual.

The death penalty, as such, is not excessive, unjust or cruel, within the
meaning of that word in the Constitution. Punishments are cruel when they
655
involve torture or lingering death. Cruel punishment implies something

inhuman and barbarous, something more than the mere extinguishment of
life. (People vs. Marcos, supra, at 216, citing People vs. Camano, 115 SCRA
688)
Rep. Act No. 296 can be given retroactive effect.

Republic Act No. 296, providing that eight justices must concur in the
imposition of death penalty is retroactive.
Rep. Act No. 296 is procedural and not substantive, and that it is
applicable to cases pending in the courts at the time of the approval of said Act
and to crimes committed before its approval. (People vs. James Young, 83
Phil. 702)
In what crimes is death penalty imposed?

In (1) treason, (2) piracy, (3) qualified piracy, (4) qualified bribery,
(5) parricide, (6) murder, (7) infanticide, (8) kidnapping and serious illegal
detention, (9) robbery with homicide, (10) destructive arson, (11) rape with
homicide, (12) plunder, (13) certain violations of the Dangerous Drugs Act,
and (14) carnapping.
"Death penalty shall be imposed in all cases in which

it must be imposed under existing law."
The accused, without any provocation, hacked to death three girls in
their house. The court refused to impose the death penalty, believing and
stating that "a quick death would seem to be too sweet a medicine for him and
he should be put to death slowly but surely" and imposed life imprisonment at
hard labor, without hope whatsoever of any pardon or reprieve.
Is the pronouncement of the court in accordance with law?
No, because as long as the death penalty remains in the statute books, it
is the duty of the judicial officers to respect and apply the law regardless of
their private opinion. (People vs. Limaco, 88 Phil. 35, 43)
The trial court must require the prosecution to present

evidence, despite plea of guilty when the crime charged is
punished with death.
656
The fact that there were no stenographic notes taken of the proceedings
and that the lower court made only a brief reference to the plea of guilty in the
decision did not speak well of the trial court's conduct in so serious a matter
involving a human life. The essence of
judicial review in capital offenses is that while society allows violent
retribution for heinous crimes committed against it, it always must make
certain that the blood of the innocent is not spilled, or that the guilty are not
made to suffer more than their just measure of the punishment and
retribution. Thus, a sentence of death is valid only if it is susceptible of a fair
and reasonable examination by this court. This, however, is impossible if no
evidence of guilt was taken after a plea of guilty. (People vs. Busa, No. L-
32047, June 25,1973, 51 SCRA 317,321)
Death penalty is not imposed in view of certain

circumstances.
Precisely because of the limited nature of his schooling and of the effect
upon his general outlook, of the unenlightened environment prevailing in the
community of Ilongots to which he belongs, as well as of the circumstance that
the deceased Flaviano Fontanilla had been a former municipal mayor, whose
act in clearing and working on a land claimed by the Ilongots was seemingly
regarded by these non-Christians as one of oppression and abuse of authority,
the Court feels that Santos should not be dealt with the severity due to persons
otherwise circumstanced. (People vs. Santos, Nos. L-17215-17, Feb.
28, 1967, 19 SCRA 445, 454)
657
PENALTY FOR COMPLEX CRIMES
Art. 48
Where the penalty of reclusion perpetua is imposed, in

lieu of the death penalty, there is a need to perfect an
appeal.
Since the death penalty's imposition is now prohibited, there is a need to
perfect an appeal, if appeal is desired, from a judgment of conviction for an
offense where the penalty imposed is reclusion perpetua in lieu of the death
penalty. (People vs. Salome, G.R. No. 169077, Aug. 31, 2006)
The records of all cases imposing the penalty of death,

reclusion perpetua or life imprisonment shall be forwarded
by the Court of Appeals to the Supreme Court for review.
Pursuant to the ruling of the Supreme Court in People vs. Mateo, G.R.
Nos. 147678-87, July 7, 2004, if the Court of Appeals should affirm the penalty
of death, reclusion perpetua or life imprisonment, it could then render
judgment imposing the corresponding penalty as the circumstances so
warrant, refrain from entering judgment and elevate the entire records of the
case to the Supreme Court for its final disposition.
Art. 48. Penalty for complex crimes. — When a single act constitutes two
or more grave or less grave felonies, or w h e n an offense is a necessary m e a
n s for committing the other, the penalty for the most serious crime shall be
imposed, the same to be applied in its m a x i m u m period. (As amended by
Act No.
4000.)
At least two crimes must be committed.

Art. 48 requires the commission of at least two crimes. But the two or
more grave or less grave felonies must be the result of a single act, or an
offense must be a necessary means for committing the other.
A complex crime is only one crime.

In complex crime, although two or more crimes are actually committed,
they constitute only one crime in the eyes of the law as well as in the
conscience of the offender. The offender has only one Art. 48
658
criminal intent. Even in the case where an offense is a necessary means for
committing the other, the evil intent of the offender is only one. (People vs.
Hernandez, 99 Phil. 515) Hence, there is only one penalty imposed for the
commission of a complex crime.
Two kinds of complex crimes:

1. When a single act constitutes two or more grave or less grave
felonies.
2. When an offense is a necessary means for committing the other.

The first is otherwise known as compound crime. The second is the
complex crime proper.
But ordinarily, both are referred to as complex crimes.
"When a single act constitutes two or more grave or less

grave felonies."
Requisites:
1. That only a single act is performed by the offender.
2. That the single act produces (1) two or more grave felonies, or (2)
one or more grave and one or more less grave felonies, or (3) two or
more less grave felonies.
The single act of throwing a hand grenade producing

murder and multiple attempted murders.
Guillen, by a single act of throwing a highly explosive hand grenade at
President Roxas resulting in the death of another person, committed several
grave felonies, namely:
(1) murder, of which Simeon Varela was the victim; and
(2) multiple attempted murders, of which President Roxas and four
others were the injured parties. (People vs. Guillen, 85 Phil. 307,
318)
Murder is committed when a person is killed by means of explosion.
(Art. 248) The penalty for the crime committed is death, the maximum of the
penalty for murder, which is the graver offense. The penalty for each of the
attempted murder is two degrees lower, Art. 48
which is still an afflictive penalty. The attempted murders are grave felonies.
659
Placing a time bomb in a plane, which caused it to explode in mid-air,
killing 13 persons therein, constitutes a complex crime of multiple murder and
destruction of property. (People vs. Largo, 99 Phil. 1061-1062 [Unrep.])
Several shots from Thompson sub-machine gun causing

several deaths, although caused by a single act of
pressing the trigger, are considered several acts.
The accused fired his Thompson sub-machine gun at several persons.
The first burst of shots hit three persons. The accused let loose a second burst
of shots wounding two others.
Held: For each death caused or physical injuries inflicted upon the
victims corresponds a distinct and separate shot fired by the accused, who
thus made himself criminally liable for as many offenses as those resulting
from every single act that produced the same. (People vs. Desierto, C.A., 45
O.G. 4542)
Although each burst of shots was caused by one single act of pressing
the trigger of the sub-machine gun, in view of its special mechanism the
person firing it has only to keep pressing the trigger with his finger and it
would fire continually. Hence, it is not the act of pressing the trigger which
should be considered as producing the several felonies, but the number of
bullets which actually produced them.
No single act in the following cases.

But when the acts are wholly different, not only in themselves, but also
because they are directed against two different persons, as when one fires his
revolver twice in succession, killing one person and wounding another (U.S.
vs. Ferrer, 1 Phil. 56), or when two persons are killed one after the other, by
different acts, although these two killings were the result of a single criminal
impulse (People vs. Alfindo, 47 Phil. 1), the different acts must be considered
as distinct crimes.
The eight killings and the attempted murder were perpetrated by means
of different acts. Hence, they cannot be regarded as constiArt. 48
tuting a complex crime under Article 48 of the Revised Penal Code which
refers to cases where "a single act constitutes two or more grave felonies, or
when an offense is a necessary means for committing the other." (People vs.
Toling, No. L-27097, Jan. 17, 1975, 62 SCRA 17, 34)
660
The infliction of the four fatal gunshot wounds on Siyang and of the
wound in the palm of the mayor's right hand was not the result of a single act.
The injuries were the consequences of two volleys of gunshots. Hence, the
assaults on Siyang and the mayor cannot be categorized as a complex crime.
(People vs. Tamani, Nos. L-22160-61, Jan. 21, 1974, 55 SCRA 153, 176)
Although several independent acts were performed by the accused in
firing separate shots from their individual firearms, it was not possible to
determine who among them actually killed victim Rolando Tugadi. Moreover,
there is no evidence that accusedappellants intended to fire at each and every
one of the victims separately and distinctly from each other. On the contrary,
the evidence clearly shows a single criminal impulse to kill Marlon Tugad's
group as a whole. Thus, one of accused-appellants exclaimed in frustration
after the ambush: "My gosh, we were not able to kill all of them." Where a
conspiracy animates several persons with a single purpose, their individual
acts done in pursuance of that purpose are looked upon as a single act, the act
of execution, giving rise to a single complex offense. (People vs. Sanidad, G.R.
No. 146099, April 30,2003)
"Two or more grave or less grave felonies."

In the case of a compound crime, the offenses involved should be either
both grave or both less grave, or one of them a grave felony and the other less
grave.
Light felonies produced by the same act should be treated

and punished as separate offenses or may be absorbed by
the grave felony.
1. Several light felonies resulting from one single act — not complex.
Thus, in a collision between two automobiles driven in a
careless and negligent manner, resulting in the slight
661
Art. 48 PENALTY FOR COMPLEX CRIMES
physical injuries of the passengers and light felony of damage to

property, there is no complex crime, because the crime of slight
physical injuries, as well as that of damage to property, is a light
felony. (People vs. Turla, 50 Phil.
1001, 1002)
In this case, there are as many crimes as there are persons
injured with light physical injuries and as many penalties as there
are light felonies committed, even if they are produced by a single
act of the offender.
2. When the crime is committed by force or violence, slight physical
injuries are absorbed.
a. Where the person in authority or his agent, who was
attacked while in the performance of his duty, suffered
slight physical injuries only, the crime of slight physical
injuries is absorbed in the crime of direct assault. (Art. 148)
This is the ruling in the cases of
People vs. Benitez, 73 Phil. 671 and People vs. Acierto, 57
Phil. 614.
b. When in the commission of rape, slight physical injuries are
inflicted on the girl's genital organ, the crime of slight
physical injuries is absorbed in the crime of rape. (People
vs. Apiado, 53 Phil. 325, 327)
The reason for the rulings is that the slight physical
injuries are the necessary consequence of the force or
violence inherent in the crimes of direct assault and rape.
Examples of compound crime:

(a) The single act of Pama in firing a shot, the same bullet causing the
death of two persons who were standing on the same line of the
direction of the bullet. (People vs. Pama, C.A., 44 O.G. 3339)
Homicide, which is the unlawful killing of a person, is
punishable by reclusion temporal, an afflictive penalty. Hence, in
killing two persons, Pama committed two homicides, which are
two grave felonies. (See Art. 9) Since they were the result of one
single act of firing a shot, a complex crime was committed.
PENALTY FOR COMPLEX CRIMES Art. 48
662
(b) The act of raping a girl, causing her physical injuries which required
medical attention for about twenty days. (U.S. vs. Andaya, 34 Phil.
690) This is a complex crime of rape with less serious physical
injuries. (Arts. 266-A and 265 in relation to Art. 48) The Supreme
Court considered the crime of less serious physical injuries (the
laceration of the genital parts which required medical attendance for
about twenty days) as necessary to the commission of the crime of
rape.
With due respect, it is believed that there being only one act of
forcible sexual intercourse which produced the two crimes, the accused
committed a compound crime.
Less serious physical injuries is a less grave felony, because it is
punishable by arresto mayor, a correctional penalty. (See Art. 9)
The Court of Appeals has a different ruling:
The less serious physical injuries inflicted on that complainant
cannot be made to complex the offense of attempted rape, because these
injuries were the result of the force exerted by the appellant to subdue
her and force her to submit to his vile desires. (People vs. De la Cruz,
C.A., 61 O.G. 5384)
(c) After a justice of the peace had read to the accused the sentence of
conviction, the latter took a dagger and stabbed said justice of the peace
in the back, the wound incapacitating him for ordinary work for more
than 30 days. This is a complex crime of direct assault with serious
physical injuries, the single act of stabbing the justice of the peace
constituting the two less grave felonies of direct assault and serious
physical injuries. (U.S. vs. Montiel, 9 Phil. 162, 167-168)
(d) Where the victim was killed while discharging his duty as barangay
captain to protect life and property and enforce law and order in his
barrio, the crime is a complex crime of homicide with assault upon a
person in authority. (G.R.
No. 57415, Dec. 15, 1989, 180 SCRA 102, 107)
661
(e) Where the stabbing and killing of the victim which caused likewise
the death of the fetus arose from the single criminal intent of
killing the victim, as shown by accused's pursuit of the victim
after she was able to escape, the crime committed is the complex
crime of murder with abortion.
(People vs. Lopez, G.R. No. 136861, Nov. 15, 2000)
Rape with homicide is a special complex crime not
covered by Art. 48.
When by reason or on the occasion of the rape, a homicide is committed,
or when the rape is frustrated or attempted and a homicide is committed by
reason or on the occasion thereof, Art. 266-B shall apply.
Therefore, the ruling in the case of People vs. Matela, 58 Phil. 718, that
raping a girl and killing her afterwards constitute two distinct offenses which
must be punished separately, is no longer controlling.
Likewise, the ruling in the case of People vs. Acosta, 60 Phil. 158, that
raping a girl transmitting to her a venereal disease which caused her death or
that killing the victim of rape when she tried to shout, People vs. Yu, 1 SCRA
199, is a complex crime of rape with homicide under Art. 48, is no longer
controlling.
Under Art. 266-B, the facts in both cases would constitute a special
complex crime of rape with homicide punished with death.
When in obedience to an order several accused

simultaneously shot many persons, without evidence how
many each killed, there is only a single offense, there
being a single
criminal impulse.
Lawas ordered the Moros to be tied in order to be brought to another
place. When one of the guards approached Datu Lomangcolob, the latter
refused, thereupon, Lawas fired his revolver at him and ordered the guards to
fire; the guards following instructions fired at the Moros including those who
tried to escape. After a short time, Lawas ordered his men to "cease fire" and
the firing stopped. The evidence positively shows that the killing was the result
of a single impulse, which was induced by the order of the leader to fire, and
continued with the intention to comply therewith, as the firing stopped as soon
664
as the leader gave the order to that effect. There was no intent on the part of
the appellants to fire at each and everyone of the victims separately and
distinctly from each other. The Supreme Court held "that if the act or acts
complained of resulted from a single criminal impulse, it constitutes a single
offense." The Court continued by stating, "it may also be added that there is
absolutely no evidence as to the number of persons killed by each and every
one of the appellants, so even if we were induced to hold each appellant
responsible for each and every death caused by him, it is impossible to carry
that desire into effect as it is impossible to ascertain the individual deaths
caused by each and everyone. We are, therefore, forced to find the appellants
guilty of only one offense of multiple homicide for which the penalty to be
imposed should be in the maximum period." (People vs. Lawas, G.R. L-7618,
June 30, 1955, 97 Phil. 975 [Unrep.])
The ruling in the Lawas case applies only when there is no evidence at all to show
the number of persons killed by each of several defendants.
The ruling in the Lawas case that each of the appellants was guilty only
of the complex crime of homicide, notwithstanding the fact that about fifty
persons were killed by the appellants who fired at them with their guns a
number of shots, because the killings were the result of a single impulse, does
not apply when the appellant
alone killed all the six victims, one after another, with one shot each. (People vs.
Remollino, 109 Phil. 607, 612)
In People vs. Abella, No. L-32205, Aug. 31, 1979, 93 SCRA 25, 76 O.G.
1091, sixteen members of the OXO gang, who were prisoners occupying three
small cells on one side of the jailhouse, were able to break into the big cell
opposite theirs and, in that big cell, killed fourteen inmates who were members
of the Sigue-Sigue gang.
The fiscal and the trial court treated the fourteen killings and injuries
inflicted on the three other victims as a complex crime of multiple murder and
multiple frustrated murder, the court imposing one penalty of death on all of
the accused.
In sustaining the trial court, the Supreme Court said:
"In the De Los Santos case, (supra), which involved two riots on two
successive days in the national penitentiary wherein nine prisoners were
killed (five on the first day and four on the second day), the fourteen
members of the Sigue-Sigue gang who took part in the killing were convicted
of multiple murder (a complex crime) and not of nine separate murders, x x
x."
665
"The ruling in the De Los Santos case is predicated on the theory that
'when, for the attainment of a single purpose (underscoring supplied) which
constitutes an offense, various acts are executed,
such acts must be considered only as one offense,' a complex crime (People vs.
Penas, 66 Phil. 682, 687; See also People vs. Cu Unjieng, 61 Phil. 236, 302 and
906) where the falsification of one hundred twenty eight warehouse receipts
during the period from November 30 to July 6, 1931, which enabled the
accused to swindle the bank in the sum of one million four hundred thousand
pesos was treated as only one complex crime of estafa through multiple
falsification of mercantile documents and only one penalty was imposed." (See
also People vs. Garcia, No. L-40106, March 13, 1980, 96 SCRA 497, 504, which
applied the same "same motive" rule.)
Note: The "single-criminal-impulse," "same motive" or the

"single-purpose" theory has no legal basis, for Article 48 speaks
of "a single act." However, the theory is acceptable when it is
not certain who among the accused killed or injured each of the
several victims.
When it is within the scope of possibility that the two

victims were killed by one and the same missile.
When there is no evidence as to how many wounds the victims received
and it is within the scope of possibility that they were killed by one and the
same missile as they were riding astride the same carabao, and they were shot
by the accused in that position, in the absence of a showing that the victims
died from more than one bullet, the crime should be classified as a complex
crime of double murder. (People vs. Bersamin, G.R. No. L-3098, March 5,
1951)
Ruling in the Bersamin case is applicable only when there is no evidence
as to how many wounds the victims received and there is a possibility that they
were killed by one and the same missile.
Thus, when the two victims each received more than one bullet wound,
they were not close to each other when fired at, and their bodies were found in
different places, the ruling is not applicable. In such case, the presumption is
that the victims were killed by different shots, and, therefore, the accused are
liable for two separate murders.
(People vs. Basarain, G.R. No. L-6690, May 24, 1955)
666
There is no complex crime of arson with homicide under

Art.
48.
The ruling in the case of U.S. vs. Burns, 41 Phil. 418, that under an
information charging the accused with setting fire to an automobile in the
basement of an inhabited house, whereby said house was destroyed and one of
its inmates burned to death, the accused is guilty of a complex crime of arson
with homicide, is no longer applicable to such case, Art. 320 of the Revised
Penal Code, as amended by Rep. Act No. 7659, having provided one penalty
therefor.
Applicable to crimes through negligence.

Thus, a municipal mayor who accidentally discharged his revolver during
a school program, killing a girl and injuring a boy requiring medical
attendance for more than 30 days, was found guilty of a complex crime of
homicide with less serious physical injuries through reckless imprudence.
(People vs. Castro, 40 O.G., Supp. 12,
83)
The reason for this ruling is that in view of the definition of felonies in
Article 3 of the Code, that is, "Acts and omissions punishable by law,"
committed either "by means of deceit (dolo)" or "by means of fault (culpa)," it
is clear that Article 48 which speaks of "felonies" is applicable to violations
under Article 365 which defines and penalizes criminal negligence, a felony by
means of fault (culpa).
A man while pouring gasoline in the tank of his passenger bus in a
garage used a candle to light the place. The gasoline caught fire and the house
was burned. His mother-in-law, who jumped from a window during the fire,
died due to burns and injuries and another person suffered serious physical
injuries.
Held: The crimes of arson, homicide, serious physical injuries, and
damage to property constitute a complex crime within the meaning of Art. 48.
(People vs. Pacson, C.A., 46 O.G. 2165)
The accused, who drove a cargo truck at a fast rate without sounding its
horn and without lights in the evening, caused his truck to collide with a
bicycle which was thrown to a group of pedestrians. Two of them died and
several other persons were seriously injured.
667
Held: The two deaths and several serious physical injuries resulted from
his single act of reckless driving. Hence, only one penalty should be imposed
upon him. (People vs. Villamora, C.A., 40 O.G. 768)
Theft of firearm and illegal possession of same firearm do

not form a complex crime — they are two distinct crimes.
While in stealing a firearm the accused must necessarily come into
possession thereof, the crime of illegal possession of firearm is not committed
by mere transient possession of the weapon. It requires something more: there
must be not only intention to own but also intent to use (People vs. Estoista, 93
Phil. 647), which is not necessarily the case in every theft of firearm. Thus,
stealing a firearm with intent not to use but to render the owner defenseless,
would not justify a charge of illegal possession of the firearm. (People vs.
Remerata, 98 Phil. 413, 414)
The other reason is that Art. 48 speaks of two or more grave or less grave
felonies resulting from a single act, which excludes crimes punishable by
special laws, like the law punishing illegal possession of firearms.
"When an offense is a necessary means for committing the

other."
Although the law uses the term "offenses," the Supreme Court, in the
case of People vs. Araneta, 48 Phil. 650, held that this kind of complex crime
does not exist when the two crimes are punished under different statutes.
Requisites:
1. That at least two offenses are committed.

2. That one or some of the offenses must be necessary to commit the
other.
3. That both or all the offenses must be punished under the same
statute.
At least two offenses must be committed.

Examples:
(a) Falsification of a public document by an accountable officer
(altering the duplicate of the cedulas already issued to other
persons by erasing the names originally written thereon and
writing in their places new names) is an offense which is necessary
668
to commit malversation (collecting P2.00 from each of them and

misappropriating the amount), which is another offense. (People vs.
Barbas, 60 Phil. 241, 243)
The falsification of the cedula certificate, which is a crime
under Art. 171, was necessary to commit the crime of malversation
under Art. 217, because the accused had to falsify the duplicate of
the cedulas to obtain from the taxpayers the money which he later
misappropriated.
(b) Simple seduction by means of usurpation of official functions. (U.S.
vs. Hernandez, 29 Phil. 109)
U.S. vs. Hernandez

(29 Phil. 109)
Fact: Accused Hernandez, in order to seduce a girl, 15 years old,

had a talk with accused Bautista. Between them they concocted a plan
and then accused Hernandez proposed marriage to the girl. She agreed.
In a house in Ermita, accused Bautista, under the name of Aniceto de
Castro and pretending to be a Protestant minister, solemnized a fictitious
marriage between the girl and accused Hernandez. Thereafter, they lived
as a married couple. Later, accused Hernandez and Bautista were
prosecuted for seduction through usurpation of public functions.
Held: Without legal authority, accused Bautista performed an act
properly pertaining to a person in authority by assuming the official
character of a minister of a religious sect in order to make the girl
believe that she was legally married to accused Hernandez who had the
intention to seduce her. The girl would not have been seduced were it not
for the act of accused Bautista.
Note: The crime of usurpation of official function (Art. 177) was a
necessary means for committing the crime of simple seduction. (Art.
338)
Abduction as a necessary means for committing rape.
A girl, 19 years of age, who had worked in the rice fields in
Calamba, Laguna, was on her way home in the afternoon. When in an
uninhabited place, the two accused forcibly abducted her against her strong
protest and resistance, took her to the woods in Silang, Cavite, and other places
where she was raped by one of the accused while her hands were being held by
the other. The crime of forcible abduction (taking a woman against her will
669
with lewd designs — Art. 342) was a necessary means for committing the crime
of rape (having sexual intercourse with a woman by using force, etc. — Art.
266-A).
(See People vs. Manguiat, 51 Phil. 406)
The phrase "necessary means" does not mean

"indispensable means."
The phrase "necessary means" used in Art. 48 has been interpreted not
to mean indispensable means, because if it did, then the offense as a "necessary
means" to commit another would be an indispensable element of the latter and
would be an ingredient thereof. The phrase merely signified that, for instance,
a crime such as simple estafa can be and ordinarily is committed in the manner
defined in the Penal Code; but if the "estafador" resorts to or employs
falsification, merely to facilitate and insure his committing estafa, then he is
guilty of the complex crime of estafa through falsification. (Dissenting Opinion,
People vs. Hernandez, 99 Phil. 515, 557)
In complex crime, when the offender executes various

acts, he must have a single purpose.-
The accused received 17 money orders with a letter, all in one envelope,
addressed to the offended party. The accused presented them to the post office
for cashing on one occasion, after having falsified the signature of the remitter
on each and every one of the 17 money orders.
Held: In all the acts performed by the accused, there was only one
criminal intent. To commit estafa, the accused had to commit 17 falsifications.
These falsifications were necessary means to commit estafa. (People vs.
Gallardo, C.A., 52 O.G. 3103)
The crime committed is only one complex crime of estafa
through multiple falsifications, and not seventeen separate estafas and
seventeen separate falsifications.
But if a person falsified 27 vouchers, not to commit estafa or
malversation, he is liable for 27 falsifications, because the various acts of
falsification were not executed for the attainment of a single purpose. (See
Gonzales vs. City Fiscal, CA-G.R. No. 19075-R, March 20, 1957)
In this case, one or more offenses are not necessary means for
committing the others.
670
When in the definition of a felony one offense is a means to commit the

other, there is no complex crime.
In murder where the killing of a person is qualified by the circumstance
that it was committed by means of fire or by means of explosion (Art. 248, par.
3) which in themselves are felonies defined and penalized in Art. 321 and Art.
324, as arson and crimes involving destruction, respectively, there is no
complex crime. The crime is murder, plain and simple.
Subsequent acts of intercourse, after forcible abduction

with rape, are separate acts of rape.
Where the complaining witness was forcibly abducted by the four
accused and violated on board a truck by one of them with the assistance of the
three others, and after reaching a house in the evening, the four of them
alternately ravished her inside the house three times each and one each the
following morning, there was only one forcible abduction with rape which was
the one committed in the truck, and the subsequent acts of intercourse in the
house against her will are separate acts of rape. The reason for the ruling is
that when the first act of rape was committed in the truck, the crime of forcible
abduction was already consummated so that each of the succeeding rapes
committed in the house cannot legally be considered as still connected with the
abduction. The crimes committed are one (1) forcible abduction with rape and
sixteen (16) separate rapes. (People vs. Bohos, No. L-40995, June 25, 1980, 98
SCRA 353, 364)
Even while the first act of rape was being performed, the crime of
forcible abduction was already consummated, so that each of the three
succeeding rapes cannot be complexed with forcible abduction. (People vs.
Jose, No. L-28232, Feb. 6, 1971, 37 SCRA 450, 475)
No complex crime when trespass to dwelling is a direct

means to commit a grave offense.
When trespass to dwelling (Art. 280) is a direct means to commit a
graver offense, like rape, homicide or murder, there is no complex
crime of trespass to dwelling with rape, homicide or murder. The trespass to
dwelling will be considered as the aggravating circumstance
of unlawful entry under par. 18, or of breaking a part of the dwelling under
par. 19, of Art. 14. (People vs. Abedosa, 53 Phil. 788, 791)
Note: Trespass to dwelling is committed when a private person shall
enter the dwelling of another against the latter's will.
671
No complex crime, when one offense is committed to

conceal the other.
But when one of the offenses was committed for the purpose of
concealing the commission of the other, there is no complex crime.
Examples:
(a) After committing homicide, the accused, in order to conceal the
crime, set fire to the house where it had been perpetrated. (People
vs. Bersabal, 48 Phil. 439, 442)
Note: Setting fire to the house is arson. (Art. 321) But in this case,
neither homicide nor arson was necessary to commit the
other.
(b) A postmaster received from the offended party r*l,250 to be

transmitted as a telegraph money order to a third person. He failed
to send the money and when the complainant demanded its return,
he returned only P417, having already misappropriated the
difference of r*833. He then forged the signature of the
complainant to a receipt made by him (the accused), reciting
therein that said complainant had already received from him the
entire amount.
Held: The amount appropriated to himself was in the
possession and at the disposal of the accused and he could have
appropriated it to himself without the necessity of the falsified
document. Two crimes were committed. The falsification was a
means to conceal, not to commit, the malversation. (U.S. vs. Geta,
43 Phil. 1009, 1013)
When the offender had in his possession the funds which

he misappropriated, the falsification of a public or official
document involving said funds is a separate offense.
The accused, a municipal treasurer of Batac, Ilocos Norte,
misappropriated f*741.24 belonging to the public funds. He made it appear in
the payroll that several municipal teachers of Batac received their salaries
when in fact they did not receive the sums indicated in the payroll as received
by them. It was held that the accused was guilty of malversation and
falsification, two separate crimes, because the falsification was not a necessary
672
means for the commission of the malversation, but was committed only to
conceal the malversation. (People vs. Cid, 66 Phil. 354, 363)
The municipal president, municipal treasurer, and a private individual
signed two official payrolls on April 30 for r*473.70 and on May 2 for P271.60,
where it was made to appear that certain persons worked as laborers in street
projects, when in fact no work was done and those persons were not entitled to
pay. The three spent the money for their own personal benefit. It was held that
the falsification of the payrolls were not necessary means for the commission of
malversation. (Regis vs. People, 67 Phil. 43, 47)
The municipal treasurer having in his possession the funds, the same
could be misappropriated by him and his co-accused without the necessity of
falsifying any document. Hence, the falsification was not a necessary means for
committing the malversation. The falsification of the payrolls was committed to
conceal the malversation, in the sense that it was made to appear that the
amounts were lawfully disbursed.
But when the offender had to falsify a public or official document to obtain
possession of the funds which he misappropriated, the falsification is a
necessary means to commit the malversation.
Thus, when the special deputy of the provincial treasurer collected from
two individuals the amount of P2.00 each in payment of their cedula tax,
which he was able to do by altering the duplicates of the cedulas, which he had
already issued to other persons, and issuing the altered duplicates to the two
individuals, the falsification of the duplicates was necessary to obtain the
r*4.00 from the two individuals and was the means to commit the
malversation by misappropriating the amount. (People vs. Barbas, 60 Phil.
241, 244)
No complex crime where one of the offense is penalized by

a special law.
Although the evidence shows that a crime has been committed for the
express purpose of committing another, as when a public officer
misappropriates public funds for which he is accountable through falsification
of public document, yet both crimes should be punished separately where it
appears that they are punished under different statutes, i.e., the Administrative
Code and the Penal Code. (People vs. Araneta, 48 Phil. 650, 654)
Note: Before the Revised Penal Code took effect, the crime of
malversation was punished under the Administrative Code.
673
Illegal possession of firearm is not a necessary means to

commit homicide.
The accused was previously convicted of homicide for the perpetration of
which he used a .30 caliber rifle. Later, he was prosecuted for illegal possession
of said firearm.
Held: The accused committed two different acts with two separate
criminal intents, to wit, the desire to take unlawfully the life of a person, and
the willful violation of the law which prohibits the possession of a firearm
without the required permit. (People vs. Alger, 92 Phil. 227, 229-230)
Note: The other reason is that homicide and illegal possession of firearm
are punished under different statutes.
Illegal possession of firearm, when considered a special

With the passage of Rep. Act No. 8294 on June 6, 1997, the use of an
unlicensed firearm in murder or homicide is now considered, not as a separate
crime, but merely a special aggravating circumstance. (People vs. Castillo, G.R.
Nos. 131592-93, February 15, 2000)
Illegal possession of firearm absorbed in rebellion.

People vs. Rodriguez
(G.R. L-13981, April 25, 1960)
Facts: The accused was charged with illegal possession of firearm

and ammunition. The accused filed a motion to quash on the ground that
the crime with which he was charged was already alleged as a component
ingredient of the crime of rebellion with which he was already charged in
the Court of First Instance of Manila.
Held: This gun was introduced by the prosecution as evidence in
the case of rebellion. On October 24, 1951, the case for rebellion was filed
in the Court of First Instance. On the other hand, the information in the
present case was filed on October 30, 1956, which involves the charge of
illegal possession of the same firearm and same ammunition. Considering
that "any or all of the acts described in Art. 135, when committed as a
means to or in furtherance of the subversive ends described in Art. 134,
become absorbed in the crime of rebellion, and can not be regarded or
penalized as distinct crimes in themselves x x x and cannot be considered
674
as giving rise to a separate crime that, under Art. 48 of the Code, would
constitute a complex one with that of rebellion (People vs. Geronimo, L-
8936, Oct. 23, 1956), the conclusion is inescapable that the crime with
which the accused is charged in the present case is already absorbed in
the rebellion case and so to press it further now would place him in
double jeopardy. While it is true that in the crime of rebellion, there is no
allegation that the firearm in question is one of those used in carrying on
the rebellion and that the same was borne by the accused without a
license, the same would not make the present charge different from the
one included in the crime of rebellion, for it appears from the record that
one of the firearms used in furtherance thereof is the same pistol with
which the accused is now charged. In fact, that pistol was presented in the
rebellion case as evidence. Nor is the fact that there is no allegation in the
rebellion case that the carrying of the firearm by the accused was without
license of any consequence, for it can be safely assumed that it was so, not
only because the accused was a dissident but because the firearm was
confiscated from his possession."
When two or more crimes are committed but (1) not by a

single act, or (2) one is not a necessary means for
committing the other, there is no complex crime.
The accused compelled the pilot to direct the airplane from Laoag to
Amoy instead of Aparri, and for not complying with such illegal demand, the
accused shot him to death.
Held: The accused committed two separate crimes of frustrated coercion
(Arts. 6 and 286) and murder (Art. 248). They do not constitute a complex
crime of grave coercion with murder, because the accused could have killed the
pilot, without necessity of compelling him to change the route of the airplane;
the coercion was not necessary for the commission of murder. Neither was
murder necessary to commit coercion. The accused executed two distinct acts,
and not only one. Compelling the pilot to change the route of the airplane is
one act. Shooting him when he did not comply with that order is another act.
(People vs. Ang Cho Kio, 95 Phil. 475, 478)
There is no complex crime of rebellion with murder, arson,

robbery, or other common crimes.
Murder, arson and robbery are mere ingredients of the crime of
rebellion, as means "necessary" for the perpetration of the offense. (Enrile vs.
Salazar, G.R. No. 92163, June 5, 1990, 186 SCRA 217, 229) Such common
675
offenses are absorbed or inherent in the crime of rebellion. (People vs.

Hernandez, 99 Phil. 515) But a rebel who, for some independent or personal
motives, commits murder or other common offenses in addition to rebellion,
may be prosecuted for and convicted of such common offenses. (People vs.
Geronimo, 100 Phil. 90, 99)
When two crimes produced by a single act are respectively

within the exclusive jurisdiction of two courts of different
jurisdiction, the court of higher jurisdiction shall try the
complex crime.
Through reckless imprudence committed in one single act, the accused
caused damage to property, punishable by a fine which only the Court of First
Instance can impose and less serious physical injuries which ordinarily is
within the exclusive jurisdiction of the municipal court.
Held: The Court of First Instance should try the case charging a complex
crime. Since both crimes were the result of a single act,
the information cannot be split into two; one for physical injuries, and another
for damage to property. (Angeles vs. Jose, 96 Phil.
151)
An accused should not be harassed with various prosecutions based on
the same act by splitting the same into various charges. (People vs. Lizardo, No.
L-22471, Dec. 11,1967,21 SCRA 1225,1227, reiterating People vs. Silva, No. L-
15974, Jan. 30, 1962, 4 SCRA 95)
People vs. Cano

(G.R. No. L-19660, May 24, 1966)
Facts: Defendant was accused of the crime of damage to property

with multiple physical injuries, thru reckless imprudence. The
information alleges that, thru reckless negligence of the defendant, the
bus driven by him hit another bus causing upon some of its passengers,
serious physical injuries and upon still others slight physical injuries, in
addition to damage to property.
Held: The information does not purport to complex the offense of
slight physical injuries thru reckless negligence with that of damage to
property and serious and less serious physical injuries thru reckless
imprudence. It is merely alleged that, thru reckless negligence of the
defendant, the bus driven by him hit another bus causing upon some of
its passengers, serious physical injuries, upon others less serious physical
676
injuries and upon still others slight physical injuries, in addition to

damage to property.
From the viewpoint both of trial practice and justice, it is doubtful
whether the prosecution should split the action against the defendant, by
filing against him several informations, one for damage to property and
serious and less serious physical injuries, thru reckless imprudence,
before the court of first instance, and another for slight physical injuries
thru reckless negligence, before the justice of the peace or municipal
court. Such splitting of the action would work unnecessary
inconvenience to the administration of justice in general and to the
accused in particular, for it would require the presentation of
substantially the same evidence before two different courts. In the event
of conviction in the municipal court and appeal to the court of first
instance, said evidence would still have to be introduced once more in the
latter court.
The CFI (now, RTC) of Manila retained jurisdiction in a

charge of abduction with rape, although abduction, which
was commenced in Manila, was not proven, and the rape
which was
committed in Cavite, was the only matter proved.
Although the forcible abduction, which was supposedly commenced in
Manila, was not proven, and although the rape, which was proven, was
actually committed in Cavite, still the CFI of Manila had jurisdiction to
convict the accused of rape. The complex crime of forcible abduction with
rape was charged in the complaint on the basis of which the case was tried.
(People vs. Pena, No. L-36435, Dec. 20, 1977, 80 SCRA 589, 598)
Art. 48 is intended to favor the culprit.

In directing that the penalty for the graver offense shall be imposed in
its maximum period, Art. 48 could have had no other purpose than to
prescribe a penalty lower than the aggregate of the penalties for each offense,
if imposed separately. The reason for this benevolent spirit of Art. 48 is
readily discernible. When two or more crimes are the result of a single act, the
offender is deemed less perverse than when he commits said crimes through
separate and distinct acts. (People vs. Hernandez, 99 Phil. 515, 542-543)
Note: If a person fired a shot and killed two persons with the same shot,
were it not for Art. 48, he would be sentenced to reclusion temporal for each
homicide. But under Art. 48, he shall be sentenced to the maximum period of
677
one reclusion temporal only. Reclusion temporal has a duration of 12 years and
1 day to 20 years.
The penalty for complex crime is the penalty for the most
serious crime, the same to be applied in its maximum
period.
Thus, in the complex crime of direct assault with homicide, the penalty
for homicide, being the more serious crime, shall be imposed and the penalty
is to be applied in its maximum period. The penalty for direct assault is at
most prision correccional in its medium and maximum periods; whereas, the
penalty for homicide is reclusion temporal.
The penalty for the complex crime of homicide with assault upon a
person in authority is the maximum period of the penalty for the more serious
crime — homicide. That penalty is the maximum period of reclusion temporal.
(People vs. Rillorta, G.R. No. 57415, Dec. 15, 1989,180 SCRA 102, 109-110)
If the different crimes resulting from one single act are punished with the
same penalty, the penalty for any one of them shall be imposed, the same to be
applied in the maximum period.
The same rule shall be observed when an offense is a necessary means for
committing the other.
A complex crime of the second form may be committed by two persons,
as in seduction through usurpation of official functions where one of the
accused committed usurpation of official functions by simulating the
performance of a marriage ceremony without legal right between the victim
and his co-accused who thereafter seduced the victim. Both accused, being in
conspiracy, were sentenced to the maximum period of the penalty for
usurpation of official functions, an offense more serious than the crime of
seduction. (U.S. vs. Hernandez, 29 Phil. 109, 113-114)
But when one of the offenses, as a means to commit the other, was committed by
one of the accused by reckless imprudence, that accused who committed the
offense by reckless imprudence is liable for his act only.
There is no question that appellant cooperated in the commission of the
complex offense of estafa through falsification by reckless imprudence by acts
without which it could not have been accomplished, and this being a fact, there
would be no reason to exculpate him from liability. Even assuming that he had
no intention to defraud the offended party if his co-defendants succeeded in
678
attaining the purpose sought by the culprits, appellant's participation together

with the participation of his co-defendants in the commission of the offense
completed all the elements necessary for the perpetration of the complex crime
of estafa through falsification of commercial document. (Article 172, Revised
Penal Code) Anyway and for the purpose of the penalty that was actually
imposed upon appellant, it is immaterial that he be considered only guilty of
falsification of a commercial document through reckless negligence, because
the penalty for the crime of falsification of a commercial document under
Article 172, No. 1, of the Revised Penal Code, is prision correccional in its
medium and maximum periods and a fine of not more than P5.000.00 which
under the provisions of Articles 25 and 26 of the same Code is a correctional
penalty. Consequently, if in the cases at bar the crimes of falsification were due
to reckless imprudence, the corresponding penalty would be arresto mayor in
its minimum and medium periods (Article 365, opening paragraph, of the
Revised Penal Code), which comprehends the penalty imposed by the Court of
Appeals upon appellant. (Samson vs. Court of Appeals, 103 Phil. 277, 282-283)
When the homicide, physical injuries, and the burning of a house are the result of
one single act of negligence, there is only one penalty, but there are three civil
liabilities.
In the case of People vs. Pacson, C.A. 46 O.G. 2165, Roque Pacson and
Ambrosio Francisco, who poured gasoline from one container to another near
a lighted candle, causing the burning of the house of Aurelio de Leon, valued at
P18,320, the injury of Romualdo de Leon, who was confined in the hospital at
the cost of f*600, and the death of Paula Elhino, were sentenced each to suffer
from four (4) months of arresto mayor to two (2) years and 4 (four) months of
prision correccional, to indemnify jointly and severally the heirs of Paula
Elhino in the sum of f*2,000, Romualdo de Leon in the sum of f*600, and
Aurelio de Leon in the sum of f*18,320.
When the penalty for one of the crimes resulting from a single act is beyond the
jurisdiction of the municipal court, there should be additional penalty for the
other.
The third paragraph of Article 365 reads as follows:
"When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be punished
by a fine ranging from an amount equal to the value of said damage to three
times such value, but which shall in no case be less than 25 pesos."
679
The above-quoted provision simply means that if there is only damage to

property, the amount fixed therein shall be imposed, but if there are also
physical injuries, there should be an additional penalty for the latter. (Angeles
vs. Jose, 96 Phil. 151, 152)
When two felonies constituting a complex crime are

punishable by imprisonment and fine, respectively, only
the penalty of imprisonment should be imposed.
When a single act constitutes two grave or less grave felonies, or one
grave and another less grave, and the penalty for one is imprisonment while
that for the other is fine, the severity of the penalty for the more serious crime
should not be judged by the classification of each of the penalties involved, but
by the nature of the penalties. (People vs. Yongco, CA-G.R. No. 18252-CR,
January
26, 1977)
Even if the fine for damage to property through reckless imprudence is
f*40,000.00, an afflictive penalty, and the penalty for physical injuries resulting
from the same act is only four (4) months of arresto mayor, a correctional
penalty, the latter penalty should be imposed.
This opinion is based on the following observation:
In the order of severity of the penalties, arresto mayor and arresto menor
are considered more severe than destierro (Article 70, R.P.C.) and arresto
menor is higher in degree than destierro (Article 71, R.P.C), even if both arresto
mayor and destierro are classified as correctional penalties, and arresto menor is
only a light penalty.
On the other hand, fine is not included in the list of penalties in the order
of severity, and it is the last in the graduated scales in Article 71 of the Revised
Penal Code.
The ruling in Angeles vs. Jose, 96 Phil. 151, that if damage to property
and physical injuries resulted from a single act of the defendant there should
be an additional penalty for the latter, is in disregard of Article 48 of the
Revised Penal Code which provides that only one penalty should be imposed
for a complex crime.
Generally, the penalty for complex crime is intended to favor the
offender. (People vs. Hernandez, 99 Phil. 515)
In People vs. Pacson, 46 O.G. 2165, the Court of Appeals held that the
penalty for a complex crime, causing the burning of a house valued at
680
f*18,320.00 and the death of one of the inmates of the house through reckless
imprudence, is from four (4) months of arresto mayor to two (2) years and four
(4) months of prision correccional, to indemnify the owner of the house and the
heirs of the deceased in
the amounts stated, without fine.
Art. 48 applies only to cases where the Code does not

provide a definite specific penalty for a complex crime.
The accused inflicted less serious physical injuries on the municipal
mayor in the cockpit where at the time there were many people present. There
was a manifest intent to insult the mayor and of adding ignominy to the
offense.
The prosecution charged the accused with a complex crime of serious
slander by deed with less serious physical injuries, because Art. 359 considers
as slander by deed any act "which shall cast dishonor, discredit, or contempt
upon another person," and since said act resulted in the infliction of less
serious physical injuries, it is also covered by Art. 265.
Held: The act cannot come under Art. 48 for the simple reason that in
this particular case, that act is specifically covered by paragraph 2 of Art. 265.
Under Art. 265, par. 2 of the Revised Penal Code, whenever an act has
been committed which inflicts upon a person less serious physical injuries with
the manifest intent to insult or offend him or under circumstances adding
ignominy to the offense, the offender should be prosecuted under that article
and, if convicted, should be sentenced to the penalty therein prescribed.
The acts complained of cannot constitute a complex crime of slander by
deed with less serious physical injuries, because complex crime exists only in
cases where the Code has no specific provision penalizing the same with
defined specific penalty. (People vs. Lasala,
G.R. No. L-12141, Jan. 30,1962, 4 SCRA 61, 62, 64-65)
One information should be filed when a complex crime is

committed.
Thus, even if several persons were killed, only one information should be
filed if the victims were killed by a single act.
But if four crimes of murder and a frustrated murder resulted from the
firing of several shots at five victims, the crimes are not complex. Five
informations should be filed. (People vs. Pineda, G.R.
681
No. L-26222, July 21,1967, 20 SCRA 748, 750, 754) In case of conviction, five
penalties shall be imposed.
The same ruling applies when one of the offenses committed is not a
necessary means for committing the other, as when one offense is committed to
conceal the other. In that case, two informations will have to be filed and in
case of conviction, two penalties shall be imposed.
When a complex crime is charged and one offense is not

proven, the accused can be convicted of the other.
When a complex crime is charged and the evidence fails to support the
charge as to one of the component offenses, the defendant can be convicted of
the other. (People vs. Maribung, No. L-47500, April 29, 1987, 149 SCRA 292,
300-301, 304)
Art. 48 does not apply when the law provides one single
penalty for special complex crimes.
Thus, in robbery with homicide (Art. 294, par. 1), robbery with rape
(Art. 294, par. 2), or kidnapping with serious physical injuries (Art. 267, par.
3), or kidnapping with murder or homicide (Art. 267, last par.), or rape with
homicide (Art. 335), Art. 48 does not apply because the Revised Penal Code
provides for one single penalty for each of those special complex crimes.
Special Complex Crime of Kidnapping with Murder or

Homicide.
Prior to 31 December 1993, the date of effectivity of R.A. No. 7659, the
rule was that where the kidnapped victim was subsequently killed by his
abductor, the crime committed would either be a complex crime of kidnapping
with murder under Art. 48 of the Revised Penal Code, or two (2) separate
crimes of kidnapping, and murder. Thus, where the accused kidnapped the
victim for the purpose of killing him, and he was in fact killed by his abductor,
the crime committed was the complex crime of kidnapping and murder under
Art. 48 of the Revised Penal Code, as the kidnapping of the victim was a
necessary means of committing the murder. On the other hand, where the
victim was kidnapped not for the purpose of killing him but was subsequently
slain as an afterthought, 2 separate crimes of kidnapping and murder were
committed.
However, R.A. No. 7659 amended Art. 267 of the Revised Penal Code by
adding thereto a last paragraph which provides — When the victim is killed
682
or dies as a consequence of the detention, or is raped, or is subjected to torture

or dehumanizing acts, the maximum penalty shall be imposed.
This amendment introduced in our criminal statutes the concept
of'special complex crime' of kidnapping with murder or homicide. It effectively
eliminated the distinction drawn by the courts between those cases where the
killing of the kidnapped victim was purposely sought by the accused, and those
where the killing of the victim was not deliberately resorted to but was merely
an afterthought.
Consequently, the rule now is: Where the person kidnapped is killed in the
course of the detention, regardless of whether the killing was purposely sought or
was merely an afterthought, the kidnapping and murder or homicide can no
longer be complexed under Art. 48, nor be treated as separate crimes, but shall be
punished as a special complex
crime under the last paragraph of Art. 267, as amended by R.A. No. 7659. (People
vs. Ramos, 297 SCRA 618, citing Parulan vs. Rodas)
Plurality of crimes.
Plurality of crimes defined.
Plurality of crimes consists in the successive execution by the same
individual of different criminal acts upon any of which no conviction has yet
been declared. (Guevara)
Kinds of plurality of crimes.

There are two kinds of plurality of crimes: (1) formal or ideal plurality,
and (2) real or material plurality.
Art. 48 provides for two cases of formal or ideal plurality of crimes. There
is but one criminal liability in this kind of plurality.
In real or material plurality, there are different crimes in law as well as
in the conscience of the offender. In such cases, the offender shall be punished
for each and every offense that he committed.
Example of real or material plurality.

A stabbed B with a knife. Then, A also stabbed C. There are two crimes
committed. Note that there are two acts performed.
Plurality of crimes distinguished from recidivism.
683
In recidivism, there must be conviction by final judgment of the first or

prior offense; in plurality of crimes, there is no conviction of any of the crimes
committed.
Plural crimes of the formal or ideal type are divided into

three groups.
A person committing multiple crimes is punished with ONE penalty in
the following cases:
1. When the offender commits any of the complex crimes defined in
Art. 48 of the Code.
2. When the law specifically fixes a single penalty for two or more
offenses committed.
Examples:
(1) Robbery with homicide (Art. 294);

(2) Kidnapping with serious physical injuries. (Art. 267, par. 3)
3. When the offender commits continued crimes.
Continued crime.
A continued (continuous or continuing) crime is a single crime, consisting
of a series of acts but all arising from one criminal resolution.
A continuing offense is a continuous, unlawful act or series of acts set on
foot by a single impulse and operated by an unintermittent force, however long
a time it may occupy. (22 C.J.S., 52)
Although there is a series of acts, there is only one crime committed.
Hence, only one penalty shall be imposed.
Examples of continued crimes:

1. Thus, a collector of a commercial firm misappropriates for his
personal use several amounts collected by him from different persons.
There is here one crime only, because the different and successive
appropriations are but the different moments during which one
criminal resolution arises and a single defraudation develops.
But if it does not appear that when the malversation and the
falsification were committed on April 30, it was already the intention of
the appellant to commit also the falsification and the malversation of May
684
2, 1931, the same being necessary to justify the finding that, although they
were committed on different dates, a single intention determined the
commission of both, the appellant is liable for each and every one of those
offenses. (Regis vs. People, 67 Phil. 43, 47)
2. Likewise, a thief who takes from the yard of a house two game roosters
belonging to two different persons commits only one crime, for the
reason that there is a unity of thought in the criminal purpose of the
offender. There is no series of acts here for the accomplishment of
different purposes, but only of one (purpose) which is consummated,
and which determines the existence of only one crime. (People vs. De
Leon, 49 Phil. 437, 439-441)
In getting hold of the two roosters, it is not done by a single act of
taking, but by two separate acts. There is, however, a unity of thought and
action in taking the two roosters.
The taking of six roosters from coop is a single offense of theft. The
assumption is that the accused were animated by single criminal impulse.
(People vs. Jaranilla, No. L-
28547, Feb. 22, 1974, 55 SCRA 563, 575)
3. Eight robberies as component parts of a general plan. While the
inhabitants of a barrio were working in a sugar mill, seven armed
persons, who had a general plan to commit robbery against all those in
the place, entered the mill and while two of the bandits guarded the
people with guns levelled at them, five of them ransacked the houses
for their personal properties.
Held: The several acts of ransacking the different houses were not
unconnected and entirely distinct from one another. They formed
component parts of the general
plan to despoil all those within the vicinity. There is only one crime of
robbery in this case. (People vs. De la Cruz,
G.R. L-1745, May 23, 1950)
4. The accused and his companion ran amok in the passengers' section of
the upper deck of a motorboat. Eleven persons were killed and twenty
other persons were seriously wounded by him and his companion who
was later killed by a patrolman. The accused confessed that he and his
companion had a common motive to run amok. It was held that since
the killings were the result of a single impulse and that neither the
accused nor his companion had in mind killing any particular
individual, the acts complained of should be considered as resulting
685
from a single criminal impulse and constituting a single offense.

(People vs. Emit, CA-G.R. No. 13477-R, Jan. 31, 1956)
Not one continuing crime, but three separate crimes.

People vs. Enguero
(100 Phil. 1001)
Facts: Appellants were charged with the crime of robbery in band

in three separate informations, committed by robbing one house, then
proceeded to another house where the second robbery was committed
and then to another house where the third robbery was committed.
Held: Appellants argue that they are guilty of one crime only,
citing in support of their contention the case of People vs. De Leon, 49
Phil. 437. The contention is without merit. In the case cited, defendant
entered the yard of a house where he found two fighting cocks belonging
to different persons and took them. In the present case, appellants, after
committing the first crime, went to another house where they committed
the second and then proceeded to another house where they committed
the third. Obviously, the rule in the case cited cannot be invoked and
applied to the present.
The series of acts born of a single criminal impulse may be

perpetrated during a long period of time.
A sent an anonymous letter to B, demanding P5,000 under threats of
death and burning the latter's house. B sent PI,000 to A. Two months later, A
sent again another letter to B, demanding the balance of P4.000 and making
the same threats. B sent P2,000 to A. Four months later, A sent again another
letter to B, demanding the amount of P2.000 and making the same threats. B
sent P1,000. Six months thereafter, A sent another letter to B, demanding the
remaining f*l,000 and making the same threats. This time, A was arrested for
grave threats.
It was held that the different acts of sending letters of demand for money
with threats to kill and burn the house of the offended party constitute only one
and the same crime of grave threats born of a single criminal impulse to attain
a definite objective. (See People vs. Moreno, C.A., 34 O.G. 1767)
When two acts are deemed distinct from one another

although proceeding from the same criminal impulse.
686
Where the accused, after uttering defamatory words against the offended
party, attacked and assaulted the latter, resulting in slight physical injuries,
two offenses were committed, for while the insults as well as the assault were
the product of the same criminal impulse, the act of insulting is entirely
different and distinct from that of inflicting physical injuries, although the two
offenses may have taken place on the same occasion, or that one preceded the
other. The act of insulting cannot be deemed included in that of inflicting
physical injuries, because the offense of insult is an offense against honor,
whereas slight physical injuries is an offense against persons. Hence,
prosecution of the accused for the two offenses cannot place him in danger of
double jeopardy. (People vs. Ramos, 59 O.G. 4052)
Slander (uttering defamatory words) is defined and penalized in Art.
358. Slight physical injuries is defined and penalized in Art. 266.
A continued crime is not a complex crime.

A continued crime is not a complex crime, because the offender in
continued or continuous crime does not perform a single act, but a series of
acts, and one offense is not a necessary means for committing
the other.
Not being a complex crime, the penalty for continued crime is not to be
imposed in the maximum period.
There is no provision in the Revised Penal Code or any other penal law
defining and specifically penalizing a continuing crime. The principle is applied
in connection with two or more crimes committed with a single intention.
687
PENALTY FOR CRIME NOT INTENDED
Thus, in the case of People vs. De Leon, supra, the theft of the two game
roosters belonging to two different persons was punished with one penalty
only, the Supreme Court holding that there being only one criminal purpose in
the taking of the two roosters, only one crime was committed.
A continued crime is different from a transitory crime.

A continued, continuous or continuing crime is different from a
transitory crime in criminal procedure to determine venue. An example of
transitory crime, also called a "moving crime," is kidnapping a person for the
purpose of ransom, by forcibly taking the victim from Manila to Bulacan
where ransom was demanded. The offenders could be prosecuted and tried
either in Manila or in Bulacan.
When a transitory crime is committed, the criminal action may be
instituted and tried in the court of the municipality, city or province wherein
any of the essential ingredients thereof took place. The singleness of the crime,
committed by executing two or more acts, is not considered.
Distinguish real or material plurality from continued crime.

In real or material plurality as well as in continued crime, there is a
series of acts performed by the offender.
While in real or material plurality, each act performed by the offender
constitutes a separate crime, because each act is generated by a criminal
impulse; in continued crime, the different acts constitute only one crime
because all of the acts performed arise from one criminal resolution.
Art. 49. Penalty to be imposed upon the principals when the crime
committed is different from that intended. — In cases in which the felony
committed is different from that which the offender intended to commit, the
following rules shall be observed.
1. If the penalty prescribed for the felony committed be higher than
that corresponding to the offense which the accused intended to commit, the
penalty corresponding to the latter shall be imposed in its maximum period.
Art. 49
2. If the penalty prescribed for the felony committed be lower than that
corresponding to the one which the accused intended to commit, the penalty
for the former shall be imposed in its maximum period.
688
PENALTY FOR CRIME NOT INTENDED Art. 49
3. The rule established by the next preceding paragraph shall not be
applicable if the acts committed by the guilty person shall also constitute an
attempt or frustration of another crime, if the law prescribes a higher penalty
for either of the latter offenses, in which case the penalty provided for the
attempt or the frustrated crime shall be imposed in the
maximum period.
Rules as to the penalty to be imposed when the crime

committed is different from that intended.
1. If the penalty for the felony committed be higher than the penalty
for the offense which the accused intended to commit, the lower
penalty shall be imposed in its maximum period.
2. If the penalty for the felony committed be lower than the penalty
for the offense which the accused intended to commit, the lower
penalty shall be imposed in its maximum period.
3. If the act committed also constitutes an attempt or frustration of
another crime, and the law prescribes a higher penalty for either
of the latter, the penalty for the attempted or frustrated crime
shall be imposed in its maximum period.
Art. 49 has reference to the provision of the 1st paragraph

of Art. 4.
When the crime actually committed is different from that intended, as
contemplated in the first paragraph of Art. 4, the penalty to be imposed must
be governed by the rules provided in Art. 49, because the opening sentence of
Art. 49 specifically mentions "cases in which the felony committed is different
from that which the offender intended to commit." On the other hand, Art. 4
in its paragraph 1 provides that criminal liability shall be incurred "by any
person committing a felony (delito) although the wrongful act done be different
from that which he intended."
Art. 49 applies only when there is a mistake in the identity

of the victim of the crime, and the penalty for the crime
committed is different from that for the crime intended to
be committed.
Paragraph 1 of Art. 4 covers (1) aberratio ictus (mistake in the blow), (2)
error in personae (mistake in the identity of the victim), and (3) praeter
intentionem (where a more serious consequence not intended by the offender
befalls the same person).
689
(1) Aberratio ictus —
Example: A fired his gun at his father, with intent to kill him, but
he missed and hit C, killing the latter.
In this case, two crimes were actually committed: (1)
homicide, of which C was the victim; and (2) attempted parricide,
of which A's father was the offended party. One who fires a gun at
his father with intent to kill is guilty of attempted parricide, even if
the latter is not injured at all.
The two crimes actually committed were the result of a
single act; hence, A committed a complex crime of consummated
homicide with attempted parricide. There being a complex crime,
Art. 48, not Art. 49, is applicable.
Thus, the Supreme Court in the case of Guillen, 85
Phil. 307, said: "We think it is (Art. 48) and not paragraph 1 of
Article 49 that is applicable. The case before us is clearly governed
by the first clause of Article 48 because by a single act, that of
throwing a highly explosive hand grenade at President Roxas, the
accused committed several grave felonies, namely: (1) murder, of
which Simeon Valera was the victim; and (2) multiple attempted
murder, of which President Roxas, Alfredo Eva, Jose Fabio, Pedro
Carillo and Emilio Maglalang were the injured parties."
(2) Error in personae —

Examples:
A, thinking that the person walking in a dark alley was B,
a stranger, fired at that person, who was killed as a result. It
turned out that person was C, the father of A.
690
Art. 49 PENALTY FOR CRIME NOT INTENDED
In this case, the crime actually committed is parricide,

punishable by reclusion perpetua to death. The crime which A
intended to commit is homicide, punishable by reclusion
temporal. In view of rule No. 1 provided for in Art. 49, the
penalty for homicide shall be imposed in its maximum period.
But suppose that A wanted to kill his father and waited for
the latter in a dark alley where he used to pass in going home;
when A saw a person coming and thinking that he was his father,
A shot him; and it turned out that that person was a stranger. In
this case, A should be punished with the penalty for homicide to
be applied in its maximum period.
Note that in either case, the lesser penalty is always to be
imposed, only that it shall be imposed in the maximum period.
(3) Praeter intentionem —

Example: A, without intent to kill, boxed B from behind on
the back part of the latter's head. B fell to the cement pavement
with his head striking it. B died due to the fracture of the skull. In
this case, the death of B was not intended by A.
Art. 49 has no application to cases where a more serious consequence not

intended by the offender befalls the same person.
A wanted only to inflict a wound on the face of B that would leave a
permanent scar on his face or one that would compel the latter to remain in
the hospital for a week or two, but never intended to kill him. But as A did not
have control of his right arm on account of paralysis, the blow, although
intended for the face, landed at the base of the neck, resulting in the fatal
wound in that part of the body of B, who died as a consequence. (People vs.
Albuquerque, 59 Phil.
150,152)
In this case, there is praeter intentionem and the crime not intended by
the offender befell the same person. Note that in the examples under error in
personae, the crime not intended by the offender befell a different person.
691
PENALTIES
From the foregoing examples and discussions, it will be noted that the
rules stated in paragraphs 1 and 2 of Art. 49 cannot apply to cases involving
aberratio ictus or praeter intentionem.
On the other hand, in error in personae, since only one crime is produced
by the act of the offender, there could be no complex crime, which
presupposes the commission of at least two crimes. In the two examples of
error in personae, it will be noted that only one person was affected by the
single act of the offender; hence, only one crime was produced. For this
reason, it is Art. 49, and not Art. 48, that is applicable.
Art. 49 is applicable only when the intended crime and the

crime actually committed are punished with different
penalties.
The rules prescribed in paragraphs 1 and 2 of Art. 49 contemplate of
cases where the intended crime and the crime actually committed are punished
with different penalties by reason of relationship between the offender and the
offended party, which qualifies one of the crimes.
If the intended crime and the crime actually committed are punished
with the same or equal penalties, Art. 49 is not applicable.
Thus, if A, intending to kill B, a stranger, actually killed C, another
stranger, Art. 49 is not applicable, because whether it was B or it was C who
was killed, the crime committed was homicide. There is no difference in the
penalty.
Art. 49 distinguished from Art. 48.

In Art. 49, the lesser penalty is to be imposed, to be applied in the
maximum period (Pars. 1 and 2); in Art. 48, the penalty for the more or most
serious crime shall be imposed, the same to be applied in its maximum period.
Rule No. 3 in Art. 49 is not necessary.

The rule in paragraph 3 of Art. 49 is not necessary because the cases
contemplated in that paragraph may well be covered by Art. 48, in view of
the fact that the same act committed by the guilty person, which gives rise to
one crime, also constitute(s) an attempt or a frustration of another crime.
Arts. 50-55
Art. 50. Penalty to be imposed upon principals of a frustrated crime. —

The penalty next lower in degree than that prescribed by law for the
692
Art. 49
consummated felony shall be imposed upon the principals in a frustrated
felony.
Art. 51. Penalty to be imposed upon principals of attempted crime. — The

penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon the principals in an attempt to
commit a felony.
Art. 52. Penalty to be imposed upon accomplices in a consummated crime.

— The penalty next lower in degree than that prescribed by law for the
consummated felony shall be imposed upon the accomplices in the commission
of a consummated felony.
Art. 53. Penalty to be imposed upon accessories to the commission of a

consummated felony. — The penalty lower by t w o degrees than that
prescribed by law for the consummated felony shall
be imposed upon the accessories to the commission of a consummated felony.
Art. 54. Penalty to be imposed upon accomplices in a frustrated crime. —

The penalty next lower in degree than that prescribed by law for the
frustrated felony shall be imposed u p o n the accomplices in the commission
of a frustrated felony.
Art. 55. Penalty to be imposed upon accessories of a frustrated crime. —

The penalty lower by t w o degrees than that prescribed by law for the
frustrated felony shall be imposed upon the accessories to the commission of a
frustrated felony.
693
PENALTIES
Arts. 50-57
Art. 56. Penalty to be imposed upon accomplices in an attempted crime. —

The penalty next lower in degree than that prescribed by law for an attempt
to commit a felony shall be imposed upon the accomplices in an attempt to
commit the felony.
Art. 57. Penalty to be imposed upon accessories of an attempted crime. —

The penalty lower by t w o degrees than that prescribed by law for the
attempt shall be imposed upon the accessories to the attempt to commit a
felony.
Diagram of the application of Arts. 50 to 57.

Consummated Frustrated Attempted
Principals 0 2
i »
—
Accomplices 1 2 3
Accessories 2 3 4
"0" represents the penalty prescribed by law in denning a crime, which

is to be imposed on the principal in a consummated offense, in accordance with
the provisions of Article 46. The other figures represent the degrees to which
the penalty must be lowered, to meet the different situations anticipated by
law.
In Articles 50, 51, 52 and 53 of the Revised Penal Code, the basis for
reduction of the penalty by one or two degrees, is invariably the penalty
prescribed by law for the consummated crime, while under Articles 54 and 55,
the basis for the reduction is the penalty prescribed by law for the frustrated
felony; and under Articles 56 and 57, the basic penalty to be used for
reduction by one or two degrees is that for the attempted felony. From all of
these, it will also be observed that in making any reduction by one or two
degrees, the basis used is that already prescribed, not as already reduced. It
will also be noticed that under Article 51, the penalty for an attempted crime
694
PENALTIES
is that for the consummated felony, reduced by two degrees, not the penalty
Arts. 50-57
for the frustrated felony, reduced by one degree. (De los Angeles vs. People,
103 Phil. 295, 298-299)
Examples:
A is convicted of attempted homicide for having shot B with
intent to kill the latter, but without inflicting a mortal wound.
The penalty for consummated homicide is reclusion temporal.
(Art. 249, Book II, Revised Penal Code) The penalty lower by one or
more degrees is indicated in Scale No. 1 of Art. 71. The crime committed
by A being attempted homicide, the penalty to be imposed on him is that
penalty lower by two degrees than reclusion temporal (No. 3 in Scale No.
1, Art. 71), and the penalty two degrees lower is prision correccional
(No. 5 in the same Scale No. 1).
To find the penalty for frustrated homicide, which is one degree
lower than reclusion temporal, use also Scale No. 1 of Art. 71, and that
penalty one degree lower is prision mayor (No. 4 in the Scale).
A, as principal, B, as accomplice, and C, as accessory, are
convicted of consummated homicide. The penalty for A is reclusion
temporal, he being the principal. (Art. 46) The penalty for B is prision
mayor, the penalty next lower in degree than that prescribed for the
consummated homicide. (Art. 52) The penalty for C is prision
correccional, it being two degrees lower than that prescribed for
consummated homicide. (Art. 53)
In the examples, the penalty for the principal in the attempted homicide,
and the penalties for the principal, accomplice and accessory in the
commission of consummated homicide shall be imposed in the proper period
and shall be subject to the provisions of the Indeterminate Sentence Law.
Exceptions to the rules established in Articles 50 to 57.

Arts. 50 to 57 shall not apply to cases where the law expressly prescribes
the penalty for a frustrated or attempted felony, or to be imposed upon
accomplices or accessories. (Art. 60)
Arts. 50-57
695
PENALTIES
The penalty for frustrated parricide, murder, or homicide may be two degrees
lower; and the penalty for attempted parricide, murder, or homicide may be three
degrees lower.
The courts, in view of the facts of the case, may impose upon the person
guilty of the frustrated crime of parricide, murder, or homicide, a penalty
lower by one degree than that which should be imposed under the provisions
of Art. 50; and may reduce by one degree, the penalty which under Art. 51
should be imposed for an attempt to commit any of such crimes. (Art. 250)
What are the bases for the determination of the extent of

penalty to be imposed under the Revised Penal Code?
1. The stage reached by the crime in its development (either
attempted, frustrated or consummated).
2. The participations therein of the persons liable.

3. The aggravating or mitigating circumstances which attended the
In the different stages of execution in the commission of the crime and
in the participation therein of the persons liable, the penalty is graduated by
degree.
What is a degree in relation to penalty?

A degree is one entire penalty, one whole penalty or one unit of the
penalties enumerated in the graduated scales provided for in Art. 71. Each of
the penalties of reclusion perpetua, reclusion temporal, prision mayor, etc.,
enumerated in the graduated scales of Art. 71, is a degree.
When there is mitigating or aggravating circumstance, the penalty is
lowered or increased by period only, except when the penalty is divisible and
there are two or more mitigating and without aggravating circumstances, in
which case the penalty is lowered by degree.
What is a period of penalty?

A period is one of the three equal portions, called minimum, medium,
and maximum, of a divisible penalty. (See Art. 65)
696
Art. 58 ADDITIONAL PENALTY TO BE IMPOSED UPON
CERTAIN ACCESSORIES
A period of a divisible penalty, when prescribed by the

Code as a penalty for a felony, is in itself a degree.
In Art. 140, the penalty for the leader of a sedition is prision mayor in
its minimum period and fine.
It being a degree, the penalty next lower than that penalty is prision
correccional in its maximum period. (People vs. Gayrama, 60
Phil. 796, and People vs. Haloot, 64 Phil. 739)
Art. 58. Additional penalty to be imposed upon certain accessories. —

Those accessories falling within the terms of paragraph 3 of Article 19 of this
Code w h o should act with abuse of their public functions, shall suffer the
additional penalty of absolute perpetual disqualification if the principal
offender shall be guilty of a grave felony, and that of absolute temporary
disqualification if he shall be guilty of a less grave felony.
Additional penalties for public officers who are guilty as

accessories under paragraph 3 of Article 19.
Public officers who help the author of a crime by misusing their office
and duties shall suffer the additional penalties of:
1. Absolute perpetual disqualification, if the principal offender is guilty

of a grave felony.
2. Absolute temporary disqualification if the principal offender is guilty
of less grave felony.
Why does this article limit its provisions to grave or less grave felonies?
Because it is not possible to have accessories liable for light felonies. (Art. 16).
This article applies only to public officers who abused

their public functions.
The accessories referred to in Art. 58 are only those falling within the
term of paragraph 3 of Art. 19.
PENALTY FOR IMPOSSIBLE CRIME Art. 59
697
The additional penalty prescribed in this article will be imposed only on
those accessories whose participation in the crime is characterized by the
misuse of public office or authority. This is so, because Art. 58 says "who
should act with abuse of their public functions."
Art. 59. Penalty to be imposed in case of failure to commit the crime

because the means employed or the aims sought are impossible. — When t h e p
e r s o n i n t e n d i n g to c o m m i t an offense h a s already performed the
acts for the execution of the same but nevertheless the crime w a s not
produced by reason of the fact that the act intended w a s by its nature one of
impossible accomplishment or b e c a u s e the m e a n s e m p l o y e d by such
p e r s o n are e s s e n t i a l l y i n a d e q u a t e to p r o d u c e the result
desired by him, the court, having in m i n d the social danger and the degree
of criminality s h o w n by the offender, shall impose upon h i m the penalty of
arresto mayor or a fine ranging from 200 to 500 pesos.
Penalty for impossible crime.

The penalty for impossible crime is arresto mayor or a fine ranging from
200 to 500 pesos.
Basis for imposition of proper penalty: (1) social danger,

and (2) degree of criminality shown by the offender.
The court must take into consideration the social danger and the degree
of criminality shown by the offender. (Art. 59)
Thus, a person who fired a revolver upon his enemy from a distance of
one kilometer, shows stupidity rather than dangerousness. According to the
Positivist theory, such person should not be punished, because there is neither
"social danger" nor any "degree of criminality" shown by such person. His
said act is absolutely harmless. Even subjectively, a man with a little common
sense will know that he cannot hit a person by firing a revolver one kilometer
away. (Guevara)
But one who discharged a shotgun at another from a distance of 200
yards, is guilty of discharge of firearm under Art. 254, not of Art. 60
EXCEPTIONS TO ARTICLES 50-57
698
impossible crime, there being no proof of intent to kill on the part of the
offender and it being possible of accomplishing the evil intent of the offender
(to frighten the offended party). (See People vs. Agbuya, 57 Phil. 238, 243)
Is the penalty for impossible crime proper?

The fixing of the penalty of arresto mayor or a fine of f*200 to P500 is
subject to criticism, because this article uses the words "offense" and "crime"
which include light felony. So, he who attempts to commit a light felony of
impossible materialization may be punished by a penalty of arresto mayor
which is higher than that prescribed for the consummated light felony, which
is arresto menor. (Albert)
But the provision of Article 59 is limited to those cases where the act
performed would be grave felonies or less grave felonies.
(Guevara)
Art. 60. Exceptions to the rules established in Articles 50 to 57.

— The provisions contained in Articles 50 to 57, inclusive, of this Code shall
not be applicable to cases in which the law expressly prescribes the penalty
provided for a frustrated or attempted felony, or to be imposed upon
accomplices or accessories.
Arts. 50 to 57 do not apply when the law expressly

prescribes the penalty for a frustrated or attempted felony
or to be imposed upon accomplices or accessories.
Thus, when on the occasion or in consequence of an attempted or
frustrated robbery, the offender commits a homicide, the law provides in Art.
297 that the special penalty of reclusion temporal in its maximum period to
reclusion perpetua shall be imposed upon the offender.
Were it not for this provision in Art. 60, the penalty to be imposed would
be reclusion temporal which is the penalty next lower in degree than reclusion
perpetua to death, the penalty for consummated offense of robbery with
homicide.
Because of the enormity of the offense of attempted or frustrated
robbery with homicide, the law provides a special penalty therefor.
EXCEPTIONS TO ARTICLES 50-57 Art. 60
Accomplice, punished as principal.
699
Again, under the general rule, an accomplice is punished by a penalty
one degree lower than the penalty imposed upon the principal. But in two
cases, the Code punishes an accomplice with the same penalty imposed upon
the principal. They are:
1. The ascendants, guardians, curators, teachers and any person who
by abuse of authority or confidential relationship, shall cooperate
as accomplices in the crimes of rape, acts of lasciviousness,
seduction, corruption of minors, white slave trade or abduction.
(Art. 346)
2. One who furnished the place for the perpetration of the crime of
slight illegal detention. (Art. 268)
Furnishing the place for the perpetration of the crime is ordinarily the
act of an accomplice.
Accessory punished as principal.

Knowingly concealing certain evil practices is ordinarily an act of the
accessory, but in Art. 142, such act is punished as the act of the principal.
Certain accessories are punished with a penalty one

degree lower, instead of two degrees.
In certain crimes, the participation of the offender is that of an
accessory because he perpetrates the act after someone has committed
counterfeiting or falsification. But the penalty for the act perpetrated is one
degree lower instead of two degrees lower in the following crimes:
1. Knowingly using counterfeited seal or forged signature or stamp
of the President. (Art. 162)
2. Illegal possession and use of a false treasury or bank note. (Art.
168)
3. Using a falsified document. (Art. 173, par. 3)
4. Using a falsified dispatch. (Art. 173, par. 2)
700
RULES FOR GRADUATING PENALTIES Art. 61
Art. 61. Rules for graduating penalties. — For the purpose of

graduating the penalties which, according to the provisions of Articles fifty to
fifty-seven, inclusive, of this Code, are to be imposed upon persons guilty as
principals of any frustrated or attempted felony, or as accomplices or
accessories, the following rules shall be observed:
1. When the penalty prescribed for the felony is single and indivisible,
the penalty next lower in degree shall be that immediately following that
indivisible penalty in the respec-
tive graduated scale prescribed in Article 71 of this Code.
2. When the penalty prescribed for the crime is composed of two
indivisible penalties, or of one or more divisible penalties to be imposed to
their full extent, the penalty next lower in degree shall be that immediately
following the lesser of the penalties prescribed in the respective graduated
scale.
3. When the penalty prescribed for the crime is composed of one or two
indivisible penalties and the m a x i m u m period of another divisible penalty,
the penalty next lower in degree shall be composed of the m e d i u m and m i
n i m u m periods of the proper divisible penalty and the m a x i m u m period
of that immediately following in said respective graduated scale.
4. When the penalty prescribed for the crime is composed of several
periods, corresponding to different divisible penalties, the penalty next lower
in degree shall be composed of the period immediately following the minimum
prescribed and of the two next following, w h i c h shall be taken from the
penalty prescribed if possible; otherwise from the penalty immediately
following in the above m e n t i o n e d respective graduated scale.
5. When the law prescribes a penalty for a crime in some manner not
specially provided for in the four preceding rules, the courts, proceeding by
analogy, shall impose the corresponding penalties upon those guilty as
principals of the frustrated felony, or of attempt to commit the same, and
upon accomplices and accessories. (As amended by Com. Act No. 217.)
Art. 61 provides for the rules to be observed in lowering

the penalty by one or two degrees.
According to Art. 46, the penalty prescribed by law in general terms
shall be imposed upon the principal in a consummated felony. According to
Arts. 50 to 57, the penalty prescribed by law for the felony shall be lowered by
one or two degrees, as follows:
(1) For the principal in frustrated felony — one degree low-
701
Art. 61 RULES FOR GRADUATING PENALTIES
er;
(2) For the principal in attempted felony — two degrees low-

er;
(3) For the accomplice in consummated felony — one degree lower; and
(4) For the accessory in consummated felony — two degrees lower.

The rules provided for in Art. 61 should also apply in determining the
minimum of the indeterminate penalty under the Indeterminate Sentence Law.
The minimum of the indeterminate penalty is within the range of the penalty
next lower than that prescribed by the Revised Penal Code for the offense.
Those rules also apply in lowering the penalty by one or two degrees by
reason of the presence of privileged mitigating circumstance (Arts. 68 and 69),
or when the penalty is divisible and there are two or more mitigating
circumstances (generic) and no aggravating circumstance. (Art. 64)
The lower penalty shall be taken from the graduated scale

in Art. 71.
Scale No. 1 in Art. 71 enumerates the penalties in the following order:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor, 9. Public censure,
10. Fine.
The indivisible penalties are: (1) death, (2) reclusion perpetua, and (3)
public censure.
The divisible penalties are reclusion temporal down to arresto menor.
The divisible penalties are divided into three periods, namely:
(1) the minimum, (2) the medium, (3) the maximum.
702
Illustrations of the rules:

First rule:
When the penalty is single and indivisible.

A single and indivisible penalty is reclusion perpetua. This is the penalty
for kidnapping and failure to return a minor. (Art. 270) In Scale No. 1 in Art.
71, the penalty immediately following reclusion perpetua is reclusion temporal.
The penalty next lower in degree, therefore, is reclusion temporal.
Second rule:
When the penalty is composed of two indivisible penalties.

Two indivisible penalties are reclusion perpetua to death. This is the
penalty for parricide. (Art. 246) The penalty immediately following the lesser
of the penalties, which is reclusion perpetua, is reclusion temporal. (See Scale
No. 1 in Art. 71)
When the penalty is composed of one or more divisible

penalties to be imposed to their full extent.
One divisible penalty to be imposed to its full extent is reclusion
temporal; and two divisible penalties to be imposed to their full extent are
prision correccional to prision mayor. The penalty immediately following the
divisible penalty of reclusion temporal in Scale No. 1 of Art. 71 is prisidn
mayor; and the penalty immediately following the lesser of the penalties of
prision correccional to prisidn mayor is arresto mayor. (See Scale No. 1 in Art.
71) Third rule:
When the penalty is composed of two indivisible penalties

and the maximum period of a divisible penalty.
The penalty for murder (Art. 248) is reclusion temporal in its maximum
period to death. Reclusion perpetua, being between reclusion temporal and
death, is included in the penalty.
Thus, the penalty for murder consists in two indivisible penalties of
death and reclusion perpetua and one divisible penalty of reclusion temporal in
its maximum period.
The proper divisible penalty is reclusion temporal. The penalty
immediately following reclusion temporal is prisidn mayor.
703
Under the third rule, the penalty next lower is composed of the medium
and minimum periods of reclusion temporal and the maximum of prision
mayor.
This is the penalty computed in the case of People vs. Ong Ta, 70 Phil.
553, 555.
Illustration:
Death
Reclusion perpetua (1) Penalty for the princi-
pal in consummated murder.

1. Maximum
Reclusion
temporal 2. Medium 1
3. Minimum (2) Penalty for accom-

plice; or penalty for
1. Maximum
the principal in frus-
Prision mayor 2. Medium trated murder.
3. Minimum
When the penalty is composed of one indivisible penalty

and the maximum period of a divisible penalty.
Example: Reclusion temporal in its maximum period to reclusion
perpetua. The same rule shall be observed in lowering the penalty by one or
two degrees.
Fourth rule:
When the penalty is composed of several periods.
704
The word "several" in relation to the number of periods, means

consisting in more than two periods. Hence, the fourth rule contemplates a
penalty composed of at least three periods.
The several periods must correspond to different divisible penalties.
The penalty which is composed of several periods corresponding to
different divisible penalties is prision mayor in its medium period to reclusion
temporal in its minimum period. The period immediately following the
minimum, which is prision mayor in its medium period, is prision mayor in its
minimum period. The two periods next following are the maximum and
medium periods of prision correccional, the penalty next following in the scale
prescribed in Art. 71 since it cannot
be taken from the penalty prescribed. Prision correccional
Penalty for the
Illustration:
principal in the
consummated felony.
Reclusion temporal
Penalty for the
accomplice; or penalty
for the principal in the
frustrated felony.
Prision mayor
Fifth rule: (by analogy, because "not
specially provided for
in the four preceding rules.")
—< 2.
When the penalty has two
periods.
Certain offenses denned in the Code are punished with a penalty
composed of two periods, either of the same penalty —
(1) For abduction (Art. 343) — prision correccional in its minimum
and medium periods;
or of different penalties —
(2) For physical injuries (Art. 263, subsection 4) — arresto mayor in
its maximum period to prision correccional in its minimum period.
705
In these cases, the penalty lower by one degree is formed by two periods
to be taken from the same penalty prescribed, if possible, or from the periods
of the penalty numerically following the lesser of the penalties prescribed.
These cases are not covered by the fourth rule, because the penalty
contemplated in the fourth rule must contain at least three periods. The
penalty under the fifth rule (by analogy) contains one or two periods only.
Example:
The penalty next lower than prision correccional in its minimum and
medium periods is arresto mayor in its medium and maximum periods.
f Maximum —
Prisidncorrecional < Medium — 'I The penalty prescribed for
Minimum — / the felony.
T h e e n a l t y n e x t l0Wer
Arrestomayor { -} P "
Med™
Minimum
When the penalty has one period.

If the penalty is any one of the three periods of a divisible penalty, the
penalty next lower in degree shall be that period next following the given
penalty. Thus, the penalty immediately inferior to prisidn mayor in its
maximum period is prision mayor in its medium period. (People vs. Co Pao,
58 Phil. 545, 551)
If the penalty is reclusion temporal in its medium period, the penalty
next lower in degree is reclusion temporal in its minimum period. (People vs.
Gayrama, 60 Phil. 796, 810)
The penalty prescribed by the Code for a felony is a degree. If the
penalty prescribed for a felony is one of the three periods of a divisible
penalty, that period becomes a degree, and the period immediately below is
the penalty next lower in degree.
Simplified rules:
The rules prescribed in paragraphs 4 and 5 of Art. 61 may be simplified,
as follows:
(1) If the penalty prescribed by the Code consists in three periods,
corresponding to different divisible penalties, the penalty next
706
lower in degree is the penalty consisting in the three periods down

in the scale.
(2) If the penalty prescribed by the Code consists in two periods, the
penalty next lower in degree is the penalty consisting in two
periods down in the scale.
(3) If the penalty prescribed by the Code consists in only one period,
the penalty next lower in degree is the next period
down in the scale.
If the given penalty is composed of one, two or three periods, the penalty
next lower in degree should begin where the given penalty ends, because,
otherwise, if it were to skip over intermediate ones, it would be lower but not
next lower in degree. (People vs. Haloot, 64 Phil. 739, 744)
In the case of U.S. vs. Fuentes, 4 Phil. 404, 405, it was held that the
penalty next lower in degree to prisidn correccional in its medium period is
arresto mayor in its medium period.
The reason for this ruling is that a degree consists in one whole or one
unit of the penalties enumerated in the graduated scales mentioned in Art. 71.
To lower a penalty by one degree, it is necessary to keep a distance of one
whole penalty or one unit of the penalties in Art. 71 between one degree and
another.
707
Art. 62 EFFECTS OF MITIGATING OR AGGRAVATING
CIRCUMSTANCES, ETC.
In the cases of People vs. Co Pao and People vs. Gayrama, there is a
distance of only one-third of a degree. But the ruling in the Fuentes case has
been superseded by the rulings in those cases.
Mitigating and aggravating circumstances are disregarded

in the application of the rules for graduating penalties.
It will be noted that each paragraph of Art. 61 begins with the phrase,
"When the penalty prescribed for the felony" or "crime." Hence, in lowering
the penalty, the penalty prescribed by the Revised Penal Code for the crime is
the basis, without regard to the mitigating or aggravating circumstances
which attended the commission of the crime.
It is only after the penalty next lower in degree is already determined
that the mitigating and/or aggravating circumstances should be considered.
Section Two. — Rules for the application of penalties with regard to the
mitigating and aggravating circumstances, and
habitual delinquency.
Art. 62. Effects of the attendance of mitigating or aggravating

circumstances and of habitual delinquency. — Mitigating or aggravating
circumstances and habitual delinquency shall be taken into account for the
purpose of diminishing or increasing the penalty in conformity with the
following rules:
1. Aggravating circumstances w h i c h in themselves constitute a crime
specially punishable by law or which are included by the law in denning a
crime and prescribing the penalty therefor shall not be taken into account for
the purpose of increasing the penalty.
1(a). When in the commission of the crime, advantage was taken
by the offender of his public position, the penalty to be imposed shall be
in its maximum regardless of mitigating circumstances.
The maximum penalty shall be imposed if the offense was
committed by any person w h o belongs to an organized/syndicated
crime group.
An organized/syndicated crime group means a group of two or
more persons collaborating, confederating or mutually helping one
another for purposes of gain in the commission of any crime.
708
EFFECTS OF MITIGATING OR AGGRAVATING Art. 62
CIRCUMSTANCES, ETC.
2. The same rule shall apply with respect to any aggravating

circumstances inherent in the crime to such a degree that it must of necessity
accompany the commission thereof.
3. Aggravating or mitigating c i r c u m s t a n c e s w h i c h arise from
the moral attributes of the offender, or from his private relations with the
offended party, or from any other personal cause, shall only serve to aggravate
or mitigate the liability of the principals, accomplices, and accessories as to w
h o m such circumstances are attendant.
4. The circumstances w h i c h consist in the material execution of the
act, or in the means employed to accomplish it, shall serve to aggravate or
mitigate the liability of those persons only w h o had knowledge of them at the
time of the execution of the act or their cooperation therein.
5. Habitual delinquency shall have the following effects:

(a) Upon a third conviction, the culprit shall be sentenced to the
penalty provided by law for the last crime of which he be found guilty and to
the additional penalty of
prision correccional in its m e d i u m and m a x i m u m periods;
(b) Upon a fourth conviction, the culprit shall be sentenced to the
penalty provided for the last crime of w h i c h he be found guilty and to the
additional penalty of prision mayor in its minimum and m e d i u m periods;
and
(c) Upon a fifth or additional conviction, the culprit shall be
sentenced to the penalty provided for the last crime of which he be found
guilty and to the additional penalty of prisidn mayor in its m a x i m u m period
to reclusion temporal in its minimum period.
Notwithstanding the provisions of this article, the total of the two
penalties to be imposed upon the offender, in conformity herewith, shall in no
case exceed 30 years.
For the purposes of this article, a person shall be deemed to be habitual
delinquent, if wi t h in a period of ten years from the date of his release or last
conviction of the crimes of serious or less serious physical injuries, robo, hurto,
estafa, or falsification, he is found guilty of any of said crimes a third time or
oftener. (As amended by Republic Act No. 7659.)
709
CIRCUMSTANCES, ETC.
Effect of the attendance of aggravating or mitigating

circumstances or of habitual delinquency.
1. Aggravating circumstances (generic and specific) have the effect of
increasing the penalty, without, however, exceeding the maximum
provided by law.
2. Mitigating circumstances have the effect of diminishing the
penalty.
3. Habitual delinquency has the effect, not only of increasing the
penalty because of recidivism which is generally implied in
habitual delinquency, but also of imposing an additional penalty.
Rules regarding aggravating and mitigating

circumstances:
Par. 1 -
Aggravating circumstances which (1) in themselves constitute a crime
especially punished by law or which (2) are included by the law in defining a
crime and prescribing the penalty therefor are not to be taken into account to
increase the penalty.
Examples:
(1) Which in themselves constitute a crime.
That the crime be committed "by means of fire" (Art.
14, par. 12), is not considered as aggravating in arson; and that
the crime be committed by means of "derailment of a locomotive"
(Art. 14, par. 12), is not considered as aggravating in the crime
described in Art. 330 known as "Damages and obstruction to
means of communication."
Art. 330 punishes the act of damaging any railway resulting
in derailment of cars.
(2) Which are included by law in denning a crime.
That the crime was committed in the dwelling of the
offended party is not aggravating in robbery with force upon
things (Art. 299); abuse of confidence is not aggravating in
qualified theft committed with grave abuse of confidence.
(Art. 310)
710
CIRCUMSTANCES, ETC.
Neither can the aggravating circumstance that the crime

was committed by means of poison (Art. 14, par. 12) be considered
in the crime of murder committed by means of poison, since using
poison to kill the victim is included by law in defining the crime of
murder. (Art. 248, par. 3)
When maximum of the penalty shall be imposed.

The maximum of the penalty shall be imposed in the following cases:
1. When in the commission of the crime, advantage was taken by the
offender of his public position;
2. If the offense was committed by any person who belongs to an
organized/syndicated crime group.
What is an organized/syndicated crime group?

An organized/syndicated crime group means a group of two or more
persons collaborating confederating or mutually helping one another for
purposes of gain in the commission of any crime.
Par. 2 -
The same rule applies with respect to aggravating circumstances which
are inherent in the crime.
Example: Evident premeditation is inherent in robbery and theft. (U.S.
vs. Castroverde, 4 Phil. 246, 248)
Par. 3 -
Aggravating or mitigating circumstances which arise from (1) the moral
attributes of the offender, or (2) from his private relations with the offended
party, or (3) from any other personal cause, serve to aggravate or mitigate the
liability of the principals, accomplices and accessories as to whom such
circumstances are attendant.
Examples:
(1) From the moral attributes of the offender:

A and B killed C. A acted with evident premeditation,
and B with passion and obfuscation.
The circumstances of evident premeditation and passion and
obfuscation arise from the moral attributes of the offenders.
711
CIRCUMSTANCES, ETC.
Evident premeditation should affect and aggravate only the

penalty for A, while passion and obfuscation will benefit B only
and mitigate his liability.
Note: The states of their minds are different.
(2) From his private relations with the offended party:

A and C inflicted slight physical injuries on B. A is the
son of B. C is the father of B. In this case, the alternative
circumstance of relationship, as aggravating, shall be taken into
account against A only, because he is a relative of a lower degree
than the offended party, B. Relationship is mitigating as regards
C, he being a relative of a higher degree than the offended party,
B.
Also, if A assisted the wife of B in killing the latter, only the
wife is guilty of parricide and A for homicide or murder, as the
case may be. (People vs. Bucsit, 43 Phil. 184, 185; People vs.
Patricio, 46 Phil. 875, 879)
V, a confidential clerk in the American Express Co., learned
of the description of the turns of the combination of his employer's
safe. B cooperated as accomplice in the commission of the crime of
qualified theft by V. It was held that the qualifying circumstance
of breach of confidence which in the case of Valdellon justifies the
imposition of a penalty one degree (now two degrees) higher than
that prescribed for simple theft does not apply to B who was not in
confidential relations with the offended party and who therefore
should be punished as an accomplice in the crime of simple theft.
(People vs. Valdellon, 46 Phil. 245, 252.)
Note: This ruling holds true even if there was conspiracy between
V and B. The rule that in conspiracy the act of one is the
act of all, does not mean that the crime of one is the
crime of all.
(3) From any other personal cause:

A and B committed a crime. A was under 16 years of age
and B was a recidivist.
Par. 4 -
712
CIRCUMSTANCES, ETC.
The circumstances which consist (1) in the material execution of the act,
or (2) in the means employed to accomplish it, shall serve to aggravate or
mitigate the liability of those persons only who had knowledge of them at the
time of the execution of the act or their cooperation therein.
Examples:
(1) Material execution of the act:

A, as principal by induction, B, and C agreed to kill D. B
and C killed D with treachery, which mode of committing the
offense had not been previously agreed upon by them with A. A
was not present when B and C killed D with treachery.
The aggravating circumstance of treachery should not be
taken into account against A, but against B and C only. (People vs.
De Otero, 51 Phil. 201) But if A was present and had knowledge of
the treachery with which the crime was committed by B and C, he
is also liable for murder, qualified by treachery.
The qualifying circumstance of treachery should not be
considered against the principal by induction when he left to the
principal by direct participation the means, modes or methods of the
commission of the felony. (U.S. vs. Gamao, 23 Phil. 81, 96)
(2) Means to accomplish the crime:

A ordered B to kill C. B invited C to eat with him.
B mixed poison with the food of C, who died after he had eaten the food.
A did not know that B used poison to kill C.
In this case, the aggravating circumstance that the crime be
committed by means of poison is not applicable to A.
There is no mitigating circumstance relating to the means

employed in the execution of the crime.
Insofar as relates to the means employed in the execution of the crime
and other acts incident to the actual perpetration thereof, it is impossible to
conceive of any mitigating circumstance which can properly be considered as
to one of the defendants, but is not equally applicable to the others, even to
those who had no knowledge of the same at the time of the commission of the
crime, or their cooperation therein. (U.S. vs. Ancheta, 15 Phil. 470, 482, citing
Groizard)
713
CIRCUMSTANCES, ETC.
Difference between (1) circumstances relating to the

persons participating in the crime and (2) circumstances
consisting in the material execution or means employed.
S induced four Igorots to kill B. S instructed them to hide in the bushes
until night when they should go to the house of B and kill him. The crime was
committed by the four Igorots as they were instructed. The trial court
considered the aggravating circumstance of nocturnity against the four
Igorots but not against S.
Is the ruling of the trial court correct?
No, nocturnity being a circumstance in the material execution of the deed
and one of the means employed to accomplish its commission, and S having
knowledge of its use, should be considered against S.
The circumstances attending the commission of a crime relate either (1)
to the persons participating in the same, or (2) to its material execution, or to the
means employed.
The former (1), do not affect all the participants in the crime, but only
those to whom they particularly apply.
The latter (2), have a direct bearing upon the criminal liability of all the
defendants who had knowledge thereof at the time of the commission of the
crime, or of their cooperation therein. (U.S. vs. Ancheta, supra)
Defendants-appellants, though forming part of the conspiracy of
kidnapping, were not the ones who actually kidnapped the victim at
nighttime; and, under Art. 62, paragraph 4, of the Revised Penal
714
Art. 62 EFFECTS OF HABITUAL DELINQUENCY
Code, they are not bound or affected by the aggravating circumstance of

nighttime unless they knew that it would be availed of in accomplishing the
offense, and there is no proof of said knowledge. (People
vs. Villanueva, 98 Phil. 327, 339)
7s it necessary that there be proof of cooperation or participation with regard to
the act of cruelty ?
1
The aggravating circumstance of cruelty, while it may be considered as

against one accused, may not be appreciated as against another accused,
where there is no sufficient proof of conspiracy in the commission of the main
act, nor is there proof of cooperation or participation on the part of the latter
with regard to the act of cruelty. (People vs. Vocalos, 59 O.G. 693)
If cruelty is a means employed to accomplish the act, cooperation or
participation with regard to the act of cruelty is not necessary, as only
knowledge of it is required by Art. 62, par. 4, of the Code.
Note, however, that as cruelty is denned in Art. 14, par. 21, the act of
cruelty (the other wrong) is "not necessary for" the "commission" of the
crime. It would seem that cruelty consists neither "in the material execution of
the act" nor "in the means employed to accomplish it." If this is the case, the
ruling in People vs. Vocales is correct, because Art. 62, par. 4, would not be
applicable.
Par. 5 -
Who is a habitual delinquent?
A person is a habitual delinquent if within a period of ten years from the
date of his (last) release or last conviction of the crimes of (1) serious or less
serious physical injuries, (2) robo, (3) hurto, (4) estafa, or (5) falsification, he is
found guilty of any of said crimes a third time or oftener.
The crimes are specified in habitual delinquency.

The crimes mentioned in the definition of habitual delinquency are:
serious or less serious physical injuries (Arts. 263 and 265), robbery (Arts.
293-303), theft (Arts. 308-311), estafa (Arts. 315-318), and falsification (Arts.
170-174).
Thus, if A was convicted of and served sentence for theft in 1935; after
his release he committed homicide (Art. 249), was convicted in 1937, and was
released in 1951; and in 1957 was convicted of rape (Art. 335); he is not a
habitual delinquent even if he was convicted the third time. Homicide and
rape are not mentioned in the definition of habitual delinquency. (See Molesa
vs. Director of Prisons, 59 Phil. 406, 408)
715
If the accused is convicted of a violation of Art. 155 (Llobrera vs.

Director of Prisons, 87 Phil. 179), or of Art. 190 (People vs. Go Ug, 67 Phil.
202), he is not a habitual delinquent, even if he has previous convictions of
theft, estafa, robbery, falsification, or serious or less serious physical injuries.
Requisites of habitual delinquency.

1. That the offender had been convicted of any of the crimes of
serious or less serious physical injuries, robbery, theft, estafa, or
falsification.
2. That after that conviction or after serving his sentence, he again
committed, and, within 10 years from his release or first
conviction, he was again convicted of any of the said crimes for the
second time.
3. That after his conviction of, or after serving sentence for, the
second offense, he again committed, and, within 10 years from his
last release or last conviction, he was again convicted of any of said
offenses, the third time or oftener.
Computation of ten-year period.

With respect to the period of ten years, the law expressly mentions the
defendant's last conviction or (last) release as the starting point from which the
ten-year period should be counted.
For instance, a person has the following criminal records:
Crimes Committed Date of Conviction Date of Release
Theft June, 1915 July, 1916
Estafa May, 1920 Oct., 1922
Attempted Robbery July, 1928 Aug., 1930
Theft Aug., 1937 Sept., 1940
Crime charged Oct., 1946
With respect to the conviction for estafa in May, 1920, the starting point
would be the date of his conviction for theft, which is June, 1915, or the date of
his release, which is July, 1916; and the date of his conviction for estafa, which
is May, 1920, or the date of release, which is Oct. 1922, should be the starting
point with reference to the conviction for attempted robbery in July, 1928, etc.
The ten-year period should not be counted from the date of conviction
for theft, which is June, 1915, or the date of release, which is July, 1916, in
EFFECTS OF HABITUAL DELINQUENCY Art. 62
relation to the last crime of which the offender was found guilty in October,
1946, because June, 1915, or July, 1916, is not the date of defendant's last
conviction or last release. The date of last conviction with respect to the crime
charged is August, 1937, for theft. The date of last release is September, 1940.
But if A was convicted of theft in 1920, of robbery in 1922, of swindling
in 1935, and of theft again in 1936, only the crime of swindling, of which he
was convicted in 1935 can be taken into account in the imposition of the
penalty for theft in 1936 and, therefore, A is not a habitual delinquent but only
a recidivist.
Why the starting point is date of release or date of last

conviction.
Suppose, a convict has the following criminal records:
Offenses Date of Date of Date of
Commission Conviction Release
Theft Aug., 1914 April, 1915 Sept., 1915

Estafa Nov., 1920 April, 1923 April, 1925
Robbery July, 1932 April, 1934
Note that as regards the crime of estafa committed in November, 1920,

the starting point may be the date of conviction for theft
(April, 1915) or the date of release (Sept., 1916), because between April, 1923
and April, 1915 there is only a difference of 8 years or between April, 1923
and Sept., 1916, there is only a difference of 7 years. But as regards robbery
committed in July, 1932, if we have to make the date of last conviction (April,
1923) as the starting point to determine the ten-year period to April, 1934, the
date when the offender was found guilty of robbery, there is already a
difference of
716
11 years. In this case, it seems that he is not a habitual delinquent. But the law
says "from the date of his release or last conviction." So, we can count the ten-
year period from April, 1925. The difference will be only 9 years. He is then a
habitual delinquent.
If the starting point is only the date of last conviction, there will be a
case where the offender cannot be considered a habitual delinquent. Suppose
that in connection with the three crimes hereinbefore mentioned, the offender
was sentenced one after another to 12 years for each, even if he should commit
717
the subsequent offense immediately after release, he cannot be a habitual

delinquent.
"The culprit shall be sentenced to the penalty provided by

law for the last crime of which he be found guilty."
Thus, if the accused is tried for robbery and previously he was convicted
of theft and estafa, robbery is the last crime, and if found guilty, the penalty
for robbery shall be imposed upon him. In view of his two previous
convictions of theft and estafa, he will be declared a habitual delinquent upon
his conviction of robbery and he will be sentenced also to the additional
penalty of prisidn correccional in its medium and maximum periods.
Additional penalty for habitual delinquency:

1. Upon a third conviction, the culprit shall be sentenced to the
penalty provided by law for the last crime of which he is found
guilty and to the additional penalty of prisidn correccional in its
medium and maximum periods.
2. Upon a fourth conviction, the culprit shall also be sentenced to the
additional penalty of prisidn mayor in its minimum and medium
periods.
3. Upon a fifth or additional conviction, the culprit shall also be
sentenced to the additional penalty of prisidn mayor in its
minimum period to reclusion temporal in its minimum period.
Total penalties not to exceed 30 years.

The total of the two penalties shall not exceed 30 years. The two
penalties refer to (1) the penalty for the last crime of which he is found guilty
and (2) the additional penalty for being a habitual delinquent.
Reason for imposing additional penalty in habitual

delinquency.
If, after undergoing punishment for the first time for any of those
crimes, instead of abandoning his ways he goes on to commit again any of
them, this second offense is punished with the maximum period of the penalty
provided by law. He may be a recidivist.
If such graver punishment for committing the second offense has proved
insufficient to restrain his proclivities and to amend his life, he is deemed to
have shown a dangerous propensity to crimes. Hence, he is punished with a
severer penalty for committing any of those crimes the third time or oftener.
An additional penalty is imposed on him.
Purpose of the law in imposing additional penalty.

The purpose of the law in imposing additional penalty on habitual
delinquents is to render more effective social defense and the reformation of
multirecidivists. (People vs. Abuyen, 52 Phil. 722, 725)
Subsequent crime must be committed AFTER

CONVICTION of former crime.
Thus, although the accused was six times previously convicted of estafa,
yet if (1) the second crime was committed before his first
conviction, and (2) the fourth before his third conviction, and (3) the fifth and
sixth were committed on the same day, the six convictions are equivalent to
three only. (People vs. Ventura, 56 Phil. 1, 5-6)
Illustration:
Date of Date of
Offenses Commission Conviction
(1) Theft January, 1920 October, 1921
(2) Estafa September, 1921 December, 1921

(3) Robbery January, 1930 March, 1931
(4) Falsification February, 1931 December, 1931
(5) Serious physical
injuries Nov. 1, 1932 Dec. 4, 1932
719
(6) Less serious

physical injuries Nov. 1, 1932 Dec. 7, 1932
Note that when the crime of estafa was committed in September, 1921,
the offender was not yet convicted of theft because the date of conviction is
October, 1921. When the crime of falsification was committed in February,
1931, the offender was not yet convicted of robbery, because the date of
conviction in the crime of robbery is March, 1931.
In order that an accused may be legally deemed a habitual criminal, it is
necessary that he committed the second crime after his
conviction of, or after service of sentence for, the first crime; that he
committed the third crime after his conviction of, or after service of sentence
for, the second crime; the fourth crime, after his conviction of, or after service
of sentence for, the third crime, etc. (People vs. Santiago, 55 Phil. 266, 272)
In the information must be alleged:

1. The dates of the commission of the previous crimes.
2. The date of the last conviction or release.

3. The dates of the other previous convictions or releases. (People vs.
Venus, 63 Phil. 435, 440)
The allegation of habitual delinquency in the information should be, as
follows:
That the accused is a habitual delinquent, under the provisions of
paragraph 5 of Art. 62 of the Revised Penal Code, having been previously
convicted of theft and estafa, to wit:
Previous Date of Date of Date of
Offenses Commission Conviction Release
Theft June 7, 1930 July 5, 1931 Oct. 3, 1931
Estafa April 9, 1935 Sept. 14, 1936 Dec. 14, 1937

Effect of plea of guilty when allegations are insufficient.
A plea of guilty to an information which fails to allege the dates of
commission of previous offenses, ofconvictions and of releases is not an
admission that the offender is a habitual delinquent, but only a recidivist.
(People vs.Masonson, 63 Phil. 92, 93-94; People vs. Flores, 63 Phil. 443, 444-
445)
720
Effect of failure to object to admission of decision showing dates of previous

convictions.
However, failure to allege said dates in the information is deemed cured
where the accused did not object to the admission of decisions for previous
offenses which show the dates of his convictions. (People vs. Nava, C.A., 58
O.G. 4750)
Date of release is not absolutely necessary.

If the preceding conviction is less than 10 years from the date of the
conviction in the offense complained of, the date of last release is not
important, because the release comes after conviction. (People vs. Tolentino,
73 Phil. 643, 644)
Habitual delinquency distinguished from recidivism.

(1) As to the crimes committed. In recidivism, it is sufficient that the
accused on the date of his trial, shall have been previously
convicted by final judgment of another crime embraced in the
same title of the Code; in habitual delinquency, the crimes are
specified.
(2) As to the period of time the crimes are committed. In recidivism, no
period of time between the former conviction and the last
conviction is fixed by law; in habitual delinquency, the offender is
found guilty of any of the crimes specified within ten years from
his last release or last conviction.
(3) As to the number of crimes committed. In recidivism, the second
conviction for an offense embraced in the same title of the Code is
sufficient; in habitual delinquency, the accused must be found
guilty the third time or oftener of any of the crimes specified.
(People vs. Bernal, 63 Phil. 750, 755)
(4) As to their effects. Recidivism, if not offset by a mitigating
circumstance, serves to increase the penalty only to the maximum;
whereas, if there is habitual delinquency, an additional penalty is
also imposed.
Rulings on habitual delinquency:

1. Ten-year period computed either from last conviction or last release.
The law on habitual delinquency does
721
not contemplate the exclusion from the computation of prior convictions

those falling outside the ten-year period immediately preceding the crime
for which the defendant is being tried, provided each conviction is followed
by another transgression within ten years from one conviction to another.
(People vs. Lacsamana, 70 Phil. 517,520; People vs. Rama, 55 Phil. 981,
982-983)
Ten-year period is counted not to the date of commission of subsequent
offense, but to the date of conviction thereof in relation to the date of his
last release or last conviction. (People vs. Morales, 61 Phil. 222, 224)
The definition of a habitual delinquent in the last paragraph of Art.
62 says, "if within a period often years x x x, he is found guilty of any of
said crimes a third time or oftener."
Thus, if A was convicted of theft in 1920; after his release he
committed and was convicted of estafa in 1922; was released on December
5, 1923; and on December 4, 1933, he committed robbery, and was
convicted thereof in January, 1934; he is not a habitual delinquent. The
reason for this is that when he was convicted of robbery in January, 1934,
more than 10 years had elapsed. The period of ten years from December 5,
1923, should not be counted up to the commission of robbery on December
4,
1933, but to the date of A's conviction thereof, which is January, 1934.
When an offender has committed several crimes mentioned in the
definition of habitual delinquent, without being first convicted of any of
them before committing the others, he is not a habitual delinquent. (People
vs. Santiago, 55 Phil. 266, 269-270)
Convictions on the same day or about the same time are considered as one
only. (People vs. Kaw Liong, 57 Phil. 839, 841-842) Convictions on March
3 and 5,1934 are considered one only. (People vs. Lopido, C.A., 38 O.G.
1907)
The reason for this ruling lies in the fact that the additional
penalties fixed by law for habitual delinquency are reformatory in
character and that their application
721
should be gradual, and this can be carried out only when the second
conviction takes place after the first or after service of sentence for
the first crime, etc. (People vs. Santiago, supra, at 270-271)
722
5. Crimes committed on the same date, although convictions on
different dates (July 29 and Sept. 2,1937), are considered only one.
(People vs. Albuquerque, 69 Phil. 608-609)
The reason for this ruling lies in the fact that until the offender
has served the additional penalty provided in his case, and has
committed or abstained from committing another crime, it cannot be
known if said additional penalty has or has not reformed him. (People
vs. Santiago, supra, at 271)
6. Previous convictions are considered every time a new offense is
committed.
On February 12, 1935, defendant was convicted of estafa. In
said case, defendant's two previous convictions were taken into
consideration for the imposition of the additional penalty. In April,
1935, defendant was also found guilty of estafa committed on October
18,1934, and his two previous convictions were also considered for the
imposition of the additional penalty. Defendant contended that he
could be sentenced only to one additional penalty which was already
imposed in the first case.
Held: The contention of defendant is untenable. Ruling in
People vs. Santiago, 55 Phil. 266, reversed. (People vs. De la Rama,
G.R. No. 43744, Jan. 31, 1936, 62 Phil. 972 [Unrep.])
7. The commission of any of those crimes need not be consummated.
He who commits a crime, whether it be attempted or frustrated,
subjectively reveals the same degree of depravity and perversity as
one who commits a consummated crime. (People vs. Abuyen, 52
Phil. 722, 725-726)
8. Habitual delinquency applies to accomplices and accessories. Their
participation in committing those crimes (serious or less serious
physical injuries, robbery, theft, estafa or falsification) repeatedly,
whether as principals, EFFECTS OF HABITUAL DELINQUENCY
Art. 62
accomplices or accessories, reveals the persistence in them of the

inclination to wrongdoing, and of the perversity of character that
had led them to commit the previous crimes. (People vs. San Juan,
69 Phil. 347, 349)
9. If one crime was committed during the minority of the offender, such
crime should not be considered for the purpose of treating him as a
habitual offender, because the proceedings as regards that crime
were suspended.
10. The imposition of the additional penalty prescribed by law for
habitual delinquents is mandatory. (People vs.
Ortezuela, 51 Phil. 857, 860-861)
The imposition of additional penalty is not discretionary.
(People vs. Navales, 59 Phil. 496, 497)
11. Modifying circumstances applicable to additional penalty.

In the case of People vs. De Jesus, 63 Phil. 760, 764765, it was
held that the additional penalty is subject to the general rules
prescribed by Art. 64, that is, that such additional penalty is to be
imposed in its minimum, medium or maximum period according to
the number and nature of the modifying circumstances present.
When the law prescribed the additional punishment for habitual
delinquency in such form as to make it susceptible of division into
periods, it must have been for no other reason than to take into
account all the circumstances which may exist in a given case with
the end in view of avoiding arbitrariness in the selection of the
period in which the punishment is to be imposed.
This case being the latest is controlling. The ruling in this case
upholds the dissenting opinion of Chief Justice Avanceha and
Justice Villamor in the Tanyaquin and Sanchez cases.
12. Habitual delinquency is not a crime. It is simply a fact or
circumstance which, if present in a given case with the other
circumstances enumerated in Rule 5 of Art. 62, gives rise to the
imposition of the additional penalties therein prescribed. (People vs.
De Jesus, supra, at 767; People vs.
Blanco, 85 Phil. 296, 297) 723
13. Penalty for habitual delinquency is a real penalty that determines

jurisdiction. (People vs. Costosa, 70 Phil. 10, 11-12)
14. A habitual delinquent is necessarily a recidivist. (People vs.
Tolentino, 73 Phil. 643, 644)
Recidivism is inherent in habitual delinquency and shall be
considered as aggravating circumstance in imposing the principal
penalty. (People vs. Espina, 62 Phil.
607, 608; People vs. De Jesus, 63 Phil. 760, 764)
Reason for the rule:
The purpose of the law in imposing additional penalty on a
habitual delinquent is to punish him more severely. If in imposing the
additional penalty, recidivism could not be considered as aggravating
circumstance in fixing the principal penalty, the imposition of the
724
additional penalty would make the penalty lighter, instead of more
severe, contrary to the purpose of the law. (People vs. Tolentino,
supra)
Illustration:
A was previously twice convicted of theft within ten years.
Within ten years after service of his last sentence, he was convicted of
robbery under Art. 294, subsection 2, of the Code, punished by
reclusion temporal in its medium period to reclusion perpetua.
Being a habitual delinquent, A should suffer 2 years, 4 months,
and 1 day of prision correctional, as an additional penalty.
Without taking into consideration the aggravating
circumstance of recidivism, the principal penalty to be imposed
would be 17 years, 4 months and 1 day of reclusion temporal, the
medium of the penalty prescribed for the crime. If we add 2 years, 4
months and 1 day (additional penalty) to the principal penalty, the
total would be 19 years, 8 months and 2 days.
But if the additional penalty is not imposed and recidivism is
taken into consideration in fixing the prin-
Art. 63
INDIVISIBLE PENALTIES
cipal penalty, it would be reclusion perpetua, which is the

maximum of the penalty prescribed by law.
15. But in imposing the additional penalty, recidivism is not aggravating
because inasmuch as recidivism is a qualifying or inherent
circumstance in habitual delinquency, it cannot be considered an
aggravating circumstance at the same time. Consequently, the
additional penalty to be imposed upon the accused must be the
minimum of that prescribed by law as, with the exception of
recidivism, no other circumstance or fact justifying the imposition
of said penalty in a higher period has been present. (People vs. De
Jesus, 63 Phil. 760, 766-767; People vs. Tolentino, 73 Phil. 643,
644)
Can a convict be a habitual delinquent without being a

recidivist?
Yes, when no two of the crimes committed are embraced in the same
title of the Code.
Illustration:
A was convicted of falsification in 1920 and served sentence in the same
year. Then, he committed estafa, convicted, and served sentence in 1925. His
last crime was physical injuries committed in 1930. Falsification is a crime
against public interests; estafa, against property; physical injuries, against
person.
The imposition of additional penalty for habitual

delinquency is constitutional.
It is neither an ex post facto law nor an additional punishment for
former crimes. It is simply a punishment on future crimes, the penalty being
enhanced on account of the criminal propensities of the accused. (People vs.
Montera, 55 Phil. 933-934)
Art. 63. Rules for the application of indivisible penalties. — In all cases
in which the law prescribes a single indivisible penalty, it shall be applied by
the courts regardless of any mitigating or aggravating circumstances that
may have attended the commission of the deed.
Art. 63 RULES FOR THE APPLICATION OF INDIVISIBLE PENALTIES
726
RULES FOR THE APPLICATION OF
In all cases in w h i c h the law prescribes a penalty composed of two
indivisible penalties the following rules shall
be observed in the application thereof:
1. When in the commission of the deed there is present only one
aggravating circumstance, the greater penalty shall
be applied.
2. When there are neither mitigating nor aggravating circumstances in
the commission of the deed, the lesser penalty shall be applied.
3. When the commission of the act is attended by some mitigating
circumstance and there is no aggravating circumstance, the lesser penalty
shall be applied.
4. When both mitigating and aggravating circumstances attended the
commission of the act, the courts shall reasonably allow them to offset one
another in consideration of their number and importance, for the purpose of
applying the penalty in accordance with the preceding rules, according to the
result of such compensation.
Outline of the rules.

1. When the penalty is single indivisible, it shall be applied regardless of any
mitigating or aggravating circumstances.
2. When the penalty is composed of two indivisible penalties, the following
rules shall be observed:
(a) When there is only one aggravating circumstance, the greater
penalty shall be imposed.
(b) When there is neither mitigating nor aggravating circumstances,
the lesser penalty shall be imposed.
(c) When there is a mitigating circumstance and no aggravating
circumstance, the lesser penalty shall be imposed.
(d) When both mitigating and aggravating circumstances are present,
the court shall allow them to offset one another.
Art. 63
727
Art. 63 applies only when the penalty prescribed by the
Code is either one indivisible penalty or two indivisible
penalties.
Art. 63 does not apply when the penalty prescribed by the Code is
reclusion temporal in its maximum period to death, because although this
penalty includes the two indivisible penalties of death and reclusion perpetua,
it has three periods; namely, the minimum (reclusion temporal maximum); the
medium (reclusion perpetua); and the maximum (death).
In this case, Art. 64 shall apply.
Example of single and indivisible penalty.

In kidnapping and failure to return a minor (Art. 270) and in rape (Art.
266-B), the penalty is reclusion perpetua, a penalty which is single and
indivisible.
Death as a single indivisible penalty is imposed for kidnapping and
serious illegal detention when the purpose of the offender is to extort ransom
(Art. 267, as amended by Rep. Act No. 7659) and for rape with homicide. (Art.
266-B)
Example of two indivisible penalties.

Reclusion perpetua to death. This penalty is imposed for parricide (Art.
246), robbery with homicide (Art. 294, par. 1), kidnapping and serious illegal
detention without intention to extort ransom (Art. 267), and rape committed
with the use of a deadly weapon or by two or more persons. (Art. 266-B)
When the penalty is composed of two indivisible

penalties, the penalty cannot be lowered by one degree,
no matter how many mitigating circumstances are
present.
When there are two or more mitigating circumstances and no
aggravating circumstance, the court cannot proceed by analogy to the
provisions of subsection 5 of Art. 64 and impose the penalty lower by one
degree. (U.S. vs. Guevara, 10 Phil. 37, 38; U.S. vs. Relador, 60 Phil. 593, 603-
604; People vs. Formigones, 87 Phil. 658,
663-664)
In a case, the commission of the crime of parricide punishable with
reclusion perpetua to death was attended by the two mitigating
728
Art. 63
circumstances of illiteracy and lack of intention to commit so grave a wrong

as that committed, without any aggravating circumstance. The lower court
imposed the penalty next lower, which is reclusion temporal, applying Art. 64,
paragraph No. 5.
Held: The penalty imposed is not correct. The rule applicable in this
case is found in Art. 63 and not in Art. 64. (U.S. vs. Relador,
supra)
Exception —
When a privileged mitigating circumstance under Art. 68 or Art. 69 is present.
But if the circumstance present is a privileged mitigating circumstance
under Art. 68 or Art. 69, since a penalty lower by one or two degrees shall be
imposed upon the offender, he may yet get a penalty one or two degrees lower.
Thus, if a woman who was being boxed by her husband stabbed him
with a knife in the chest, causing his death, she is entitled to a penalty one
degree lower from reclusion perpetua to death. The penalty one degree lower
is reclusion temporal.
The imposable penalty for the crime of rape is reclusion perpetua. The
accused being entitled to the privileged mitigating circumstance of minority,
the imposable penalty is reclusion temporal in its medium period, absent any
other mitigating or aggravating circumstance. (People vs. Galang, G.R. No.
70713, June 29, 1989, 174 SCRA 454, 460-462)
Moral value, not numerical weight, of circumstances

should prevail.
As regards paragraph No. 4 of Art. 63, the moral value rather than the
numerical weight should prevail. (U.S. vs. Bulfa, 25 Phil. 97,101; U.S. vs.
Antonio, 31 Phil. 205, 212; U.S. vs. Reguera, 41 Phil. 506, 521-522)
Mitigating circumstance is not necessary to impose

reclusidn perpetua when the crime is punishable with two
indivisible penalties of reclusidn perpetua to death.
The reason is that under Art. 63, when the crime is penalized with two
indivisible penalties, reclusion perpetua to death, the lesser Art. 64
729
DIVISIBLE PENALTIES
penalty should be imposed even when there is no mitigating circumstance
present. (People vs. Belarmino, 91 Phil. 118, 122; People vs. Laureano, 71 Phil.
530, 537)
Art. 64. Rules for the application of penalties which contain three periods.
— In cases in w h i c h the penalties prescribed by law contain three periods,
w h e t h e r it be a single divisible penalty or composed of three different
penalties, each one of which forms a period in accordance with the provisions
of Articles 76 and 77, the courts shall observe for the application of the
penalty the following rules, according to whether there are or are no
mitigating or aggravating circumstances:
1. When there are neither aggravating nor mitigating circumstances,
they shall impose the penalty prescribed by law in its medium period.
2. When only a mitigating circumstance is present in the commission of
the act, they shall impose the penalty in its minimum period.
3. When only an aggravating circumstance is present in the commission
of the act, they shall impose the penalty in its maximum period.
4. When b o t h m i t i g a t i n g a n d a g g r a v a t i n g circumstances
are present, the court shall reasonably offset those of one class against the
other according to their relative weight.
5. When there are t w o or more mitigating circumstances and no
aggravating circumstances are present, the court shall impose the penalty next
lower to that prescribed by law, in the period that it may deem applicable,
according to the number and nature of such circumstances.
6. Whatever may be the number and nature of the aggravating
circumstances, the courts shall not impose a greater penalty than that
prescribed by law, in its maximum period.
7. Within the limits of each period, the courts shall determine the extent
of the penalty according to the number Art. 64
and nature of the aggravating and mitigating circumstances and the greater
or lesser extent of the evil produced by the crime.
Art. 64 applies only when the penalty has three periods.
730
DIVISIBLE PENALTIES
Thus, Art. 64 applies when the penalty prescribed by law for the offense
is reclusidn temporal, prisidn mayor, prisidn correccional,
arresto mayor, arresto menor, or prisidn correccional to reclusidn tem-
poral, etc., because they are divisible into three periods (minimum, medium
and maximum).
When the law prescribes a single divisible penalty, as reclusidn temporal
for homicide, which according to Art. 76, is understood as distributed in three
equal parts, each part forms a period called minimum, medium and
maximum.
If the penalty is made up of three different penalties, as prisidn
correccional to reclusidn temporal, each forms a period according to Art. 77.
Thus, prisidn correccional will be the minimum; prisidn mayor, the medium;
and reclusidn temporal, the maximum. Prisidn mayor is included because it is
between prisidn correccional and reclusidn temporal in Scale No. 1 of Art. 71.
Outline of the rules:

1. No aggravating and no mitigating — medium period.
2. Only a mitigating — minimum period.
3. Only an aggravating — maximum period.

As no generic aggravating and mitigating circumstances were proven in
this case, the penalty for murder should be imposed in its medium period or
reclusidn perpetua. The death penalty imposed by the trial court was not
warranted. (People vs. Toling, No. L-27097, Jan. 17, 1975, 62 SCRA 17, 35)
The Revised Penal Code provides that when the penalties prescribed by
law contain three periods, whether it be a single divisible penalty or composed
of three different penalties, when neither aggravating nor mitigating
circumstances attend, the penalty prescribed by law shall be imposed in its
medium period. (Taer vs.
Art. 64
Court of Appeals, G.R. No. 85204, June 18,1990,186 SCRA 598,606607;

People vs. Centeno, G.R. No. 33284, April 20, 1989, 172 SCRA 607, 612)
Illustrations ofNos. 2 and 3:

A is convicted of homicide punishable by reclusidn temporal,
which has three periods (minimum, medium, and maximum).
731
DIVISIBLE PENALTIES
a. If there is no mitigating or aggravating circumstance — the
penalty is reclusidn temporal medium (14 years, 8 months and 1
day).
b. If A pleaded guilty and there is no aggravating circumstance to
offset the mitigating circumstance of plea of guilty, the penalty is
reclusidn temporal minimum (12 years and 1 day).
c. If A committed the crime of homicide in the dwelling of the
deceased, and there is no mitigating circumstance to offset the
aggravating circumstance of dwelling, the penalty to be imposed
on him is reclusidn temporal maximum (17 years, 4 months and 1
day).
When there are two (2) aggravating circumstances and
there is no mitigating circumstance, the penalty prescribed by law
for the crime should be imposed in its maximum period. (People
vs. Mateo, Jr., G.R. Nos. 53926-29, Nov. 13, 1989, 179 SCRA 303,
324)
Under Article 248 of the Revised Penal Code, the penalty
for murder is reclusidn temporal in its maximum period to death.
There being only one mitigating circumstance and no aggravating
circumstance to offset the same, the imposable penalty is the
minimum pursuant to Article 64, paragraph 2, of the same Code,
which is the maximum period of reclusidn temporal. The
Indeterminate Sentence Law applies which provides for a
minimum term within the range of the penalty next lower in
degree to be fixed in any of its periods in the discretion of the
court. Under Article 61, paragraph 3, of the same Code, when the
penalty prescribed for the crime is composed of one or two
indivisible penalties, as in this case, the penalty
732
64 RULES FOR THE APPLICATION OF
DIVISIBLE PENALTIES
next lower in degree shall be composed of the medium and minimum

periods of the proper divisible penalty and the maximum of that
immediately following in the scale. The penalty next lower in degree in
the instant case ranges from the maximum of prisidn mayor to the
medium degree of reclusidn temporal. (People vs. Ordiales, No. L-30956,
Nov. 23, 1971, 42 SCRA 238, 248-249)
When there are aggravating and mitigating — the court shall offset those of
one class against the other according to their relative weight.
Illustration:
A committed homicide in the nighttime, purposely sought for by him
and which facilitated the commission of the crime. He surrendered to the
mayor of the town and when tried pleaded
guilty to the charge.
One mitigating circumstance (either voluntary surrender or plea of
guilty) will offset the aggravating circumstance of nighttime.
The remaining mitigating circumstance will result in the imposition of
the minimum period of the penalty of reclusidn temporal, the penalty for
homicide.
The mitigating circumstance must be ordinary, not privileged; the
aggravating circumstance must be generic or specific, not qualifying or
inherent.
A qualifying circumstance (treachery) cannot be offset by a generic
mitigating circumstance (voluntary surrender). (People vs. Abletes, No. L-
33304, July 31,1974, 58 SCRA 241, 247-248)
Two or more mitigating and no aggravating — penalty next lower, in the
period applicable, according to the number and nature of such circumstances.
The penalty for the offense is reclusidn temporal maximum to reclusidn
perpetua. (Par. 4, Art. 217, RPC, as amended by RA 1060) That penalty should
be lowered by one degree because of the presence of two mitigating
circumstances. So, the maximum of the indeterminate penalty should be taken
from prisidn
732
RULES FOR THE APPLICATION OF Art. 64 DIVISIBLE

PENALTIES
mayor maximum to reclusidn temporal medium. (Par. 5, Art. 64, RPC) And
the minimum penalty should be taken from prision correccional maximum to
prisidn mayor medium. (Ramirez vs.
Sandiganbayan, No. 56441, July 25,1983,123 SCRA 709, 710-
711)
Any or both of the two mitigating circumstances should not be
considered for the purpose of fixing the proper penalty to be imposed, since
they were already taken into account in reducing the penalty by one degree
lower. (Basan vs. People, No. L-39483, Nov. 29, 1974, 61 SCRA 275, 277)
Question:
A was once convicted by final judgment of the crime of serious physical
injuries. A now committed homicide with three mitigating circumstances. Is A
entitled to a penalty one degree lower?
No, because there is an aggravating circumstance of recidivism. Physical
injuries and homicide are embraced in the same title of the Revised Penal
Code. In this case, paragraph 4 applies.
No penalty greater than the maximum period of the penalty prescribed by law
shall be imposed, no matter how many aggravating circumstances are present.
Thus, even if four generic aggravating circumstances attended the
commission of homicide without any mitigating circumstance, the court
cannot impose the penalty of reclusion perpetua, which is higher than
reclusidn temporal, the penalty for homicide.
Whatever may be the number and nature of the aggravating
circumstances, the courts may not impose a greater penalty than that
prescribed by law in its maximum period. (Art. 64, par. 6, Revised Penal
Code; People vs. Manlolo, G.R. No. 40778, Jan.
26, 1989, 169 SCRA 394, 400-401)
The court can determine the extent of the penalty within the limits of each
period, according to the number and nature of the aggravating and mitigating
circumstances and the greater or lesser extent of the evil produced by the
crime.
733
Art. 64 RULES FOR THE APPLICATION OF

DIVISIBLE PENALTIES
Example:
734
A crime punished with arresto mayor was committed with the
concurrence of three circumstances, two aggravating and one
mitigating. Under rule 4, the penalty of arresto mayor in its maximum
period (4 mos. and 1 day to 6 mos.) shall be
imposed.
Under Rule 7, the court can impose an intermediate penalty
between 4 months and 1 day to 6 months. It may impose 4 months and 1
day, 5 months, or 6 months.
The court has discretion to impose the penalty within the

limits fixed by law.
The penalty prescribed by the Code for the offense is prision mayor or 6
years and 1 day to 12 years. The court imposed 8 years and 1 day as the
maximum of the indeterminate penalty. The defense contended that the court
should have imposed a maximum lower than 8 years. Is this contention
correct?
The contention of the defense is not correct. Where a penalty imposed is
within the limits fixed by law, the charge that it was excessive is without
foundation, as the court imposing the penalty may exercise discretion in its
imposition. (People vs. Recto, et al.,
CA-G.R. No. 11341-R, December 13, 1954)
The court imposed the medium period of prisidn mayor. The medium
period of that penalty is from 8 years and 1 day to 10 years.
"Extent of the evil produced."

V deposited in a bank certain checks of no value and later knowing that
he had no money in said bank, issued checks against it. V was convicted of
estafa.
How would you apply paragraph 7 of this article?
Taking into account the extent of the injury produced by the offense
which, in a certain degree, disturbed the economic life of a banking institution,
it is proper, in accordance with Article 64, par. 7, to impose upon the accused,
the maximum of the medium degree of the penalty. (People vs. Velazco, 42
Phil. 75, 81)
RULES FOR THE APPLICATION OF Art. 64
DIVISIBLE PENALTIES
Art. 64 is not applicable when the penalty is

indivisible or prescribed by special law or fine.
Art. 64 does not apply to (1) indivisible penalties, (2) penalties
prescribed by special laws, and (3) fines. As to Nos. (2) and (3), see People vs.
Ching Kuan, 74 Phil. 23.
In what cases are mitigating and aggravating

circumstances not considered in the imposition of
penalty?
In the following cases:
1. When the penalty is single and indivisible. (Art. 63)

2. In felonies thru negligence. The rules for the application of
penalties prescribed by Article 64 are not applicable to a case of
reckless imprudence under Art. 365. (People vs. Quijano, C.A., 43
O.G. 2214; Art. 365)
3. The penalty to be imposed upon a Moro or other nonChristian
inhabitants. It lies in the discretion of the trial court, irrespective
of the attending circumstances. (Sec.
106, Adm. Code of Mindanao and Sulu; People vs. Moro
Disimban, 88 Phil. 120, 124)
The term "non-Christian" refers not only to religious belief
but in a way to geographical area and, more particularly, directly
to Philippine natives of a low grade of civilization. (De Palad vs.
Saito, 55 Phil. 831, 838)
Sec. 106 does not apply to a Moro who has lived in a
Christian province for many years. (People vs. Salazar alias
Darquez, 105 Phil. 1058)
Acts Nos. 2798 and 2913 extended Sec. 106 to the Mountain
Province. (People vs. Tumbali, C.A., 39 O.G.
214; People vs. Cawol, G.R. No. L-7250, March 31, 1955, 96 Phil.
972 [Unrep.])
4. When the penalty is only a fine imposed by an ordinance.
For violation of an ordinance, the accused was sentenced to
pay a fine of r*175, after a plea of guilty. Is he entitled to a
736
RULES IN CASES OF PENALTY NOT COMPOSED
OF THREE PERIODS
mitigating circumstance? No, because the penalty imposed being
only a fine, the rules established in Art. 65
Arts. 63 and 64 cannot be applied. (People vs. Ching Kuan, 74

Phil. 23, 24)
5. When the penalties are prescribed by special laws. (People vs.
Respecia, 58 O.G. 458)
Art. 65. Rules in cases in which the penalty is not composed of three
periods. — In cases in which the penalty prescribed by law is not composed of
three periods, the courts shall apply the rules contained in the foregoing
articles, dividing into three equal portions the time included in the penalty
prescribed, and forming one period of each of the three portions.
Meaning of the rule.

1. Compute and determine first the three periods of the entire penalty.
2. The time included in the penalty prescribed should be divided into three
equal portions, after subtracting the minimum (eliminate the 1 day)
from the maximum of the penalty.
3. The minimum of the minimum period should be the minimum of the
given penalty (including the 1 day).
4. The quotient should be added to the minimum prescribed (eliminate the
1 day) and the total will represent the maximum of the minimum period.
Take the maximum of the minimum period, add 1 day and make it the
minimum of the medium period; then add the quotient to the minimum
(eliminate the 1 day) of the medium period and the total will represent
the maximum of the medium period. Take the maximum of the medium
period, add 1 day and make it the minimum of the maximum period;
then add the quotient to the minimum (eliminate the 1 day) of the
maximum period and the total will represent the maximum of the
maximum period.
Illustration of the computation when the penalty has three

periods.
(1) Let us take as an example prisidn mayor which has a duration of 6 years
and 1 day to 12 years.
Art. 65
737
OF THREE PERIODS
(2) Subtract the minimum (disregarding the 1 day) from the maximum,
thus —
12 years - 6 years = 6 years.
(3) Divide the difference by 3, thus —

6 years -r 3 = 2 years.
(4) Use the minimum of 6 years and 1 day of prisidn mayor as the minimum
of the minimum period. Then add 2 years to the minimum (disregarding
the 1 day) to get the maximum of the minimum period. Thus — we have
8 years as the maximum of the minimum period. The range of the
minimum period is, therefore, 6 years and 1 day to 8 years.
(5) Use the maximum of the minimum period as the minimum of the
medium period, and add 1 day to distinguish it from the maximum of
the minimum period; we have — 8 years and 1 day. Then add 2 years to
the minimum of the medium period (disregarding the 1 day) to get the
maximum of the medium period. The range of the medium period is,
therefore, 8 years and 1 day to 10 years.
(6) Use the maximum of the medium period as the minimum of the
maximum period, and add 1 day to distinguish it from the maximum of
the medium period; we have — 10 years and 1 day. Then add 2 years to
the minimum of the maximum period (disregarding the 1 day) to get the
maximum of the maximum period. Hence, the range of the maximum
period is — 10 years and 1 day to 12 years.
See Art. 76. The computation is not followed in the division of arresto
mayor.
Illustration of the computation when the penalty is not

composed of three periods.
Note that Art. 65 provides for the rule to be applied when the penalty
prescribed by the Code is not composed of three periods.
Prision correccional in its medium and maximum periods is the penalty
prescribed by the Code for infanticide committed by the
mother to conceal her dishonor. (Art. 255, par. 2)
Art. 65
Computation:
738
OF THREE PERIODS
The duration of prisidn correccional is 6 months and 1 day to 6 years. 6
years - 6 months = 5 years and 6 months -=-3 = 1 year and 10 months.
Min. — 5 months and 1 day to 2 years and 4 months.
Med. — 2 years, 4 months and 1 day to 4 years and 2
months.
Max. — 4 years, 2 months and 1 day to 6 years.
Since the duration of the penalty of prisidn correccional in its medium
and maximum periods is 2 years, 4 months and 1 day to 6 years, the time
included in that penalty should be divided into three equal portions. Thus —
5 years and 12 mos. (or 6 yrs.) 2

years and 4 mos.
3) 3 years and 8 mos. (1 yr., 2 mos. and 20 days) 3 years 6
mos.
2 mos. or 60 days
The duration of each portion after dividing the duration of the penalty
into three equal portions is 1 year, 2 months and 20 days.
Since the minimum prescribed by law is 2 years and 4 months, and the
duration of each portion is 1 year, 2 months and 20 days, the time comprised
in the minimum is from 2 years, 4 months and 1 day to 3 years, 6 months and
20 days. Computation: The minimum of the minimum is 2 years, 4 months and
1 day. To obtain the maximum of the minimum we have to add 1 year, 2
months and 20 days to 2 years and 4 months. Therefore, the maximum of the
minimum is 3 years, 6 months and 20 days, computed as follows:
2 years, 4 months (and 1 day) — The minimum of the minimum.

+
1 year, 2 months and 20 days — The duration of each portion.
3 years, 6 months and 20 days — The maximum of the minimum.
To obtain the minimum of the medium, add 1 day to the maximum of

the minimum and make it the minimum of the medium.
739
IMPOSITION OF FINES Art. 66
Then, to obtain the maximum of the medium, we compute as follows:
3 y., 6 m. and 21 d. — The minimum of the medium.

1 y., 2 m. and 20 d. — The duration of each portion.
4 y., 9 m. and 10 d. — The maximum of the medium.
To obtain the minimum of the maximum, we have to add 1 day to the

maximum of the medium and make it the minimum of the maximum.
To obtain the maximum of the maximum, we have to add 1 year, 2
months and 20 days to 4 years, 9 months and 11 days, as follows:
4 y., 9 m. and 11 d. — The minimum of the maximum.

+
1 y., 2 m. and 20 d. The duration of each portion.
6 years The maximum of the maximum.
Hence, the maximum is from 4 years, 9 months, and 11 days to 6 years.
Art. 66. Imposition of fines. — In imposing fines the courts may fix any
amount within the limits established by law; in fixing the amount in each case
attention shall be given, not only to the mitigating and aggravating
circumstances, but more particularly to the wealth or means of the culprit.
Outline of this provision:

1. The court can fix any amount of the fine within the limits established by
law.
2. The court must consider —
a. The mitigating and aggravating circumstances; and
b. More particularly, the wealth or means of the culprit.

Art. 66 IMPOSITION OF FINES
740
When the minimum of the fine is not fixed.
When the law does not fix the minimum of the fine, the determination
of the amount of the fine to be imposed upon the culprit is left to the sound
discretion of the court, provided it shall not exceed the maximum authorized
by law. (People vs. Quinto, 60 Phil. 351, 357-358)
Fines are not divided into three equal portions.

The courts are not bound to divide the amount of fine prescribed by law
into three equal portions as in the case of imprisonment imposed in relation to
a divisible penalty.
Wealth or means of culprit is main consideration in fine.

The wealth or means of the culprit is emphasized, because a fixed
amount of fine for all offenders of a particular crime, will result in an
inequality. f*100 to a rich man is chicken-feed; but certainly, that amount is
something to a poor man.
To an indigent laborer, for instance, earning P8.00 a day or about
f*208.00 a month, a fine of f*20.00 would undoubtedly be more severe than a
fine of f*50.00 to an office holder or property owner with a monthly income of
P800.00.
Obviously, to impose the same amount of a fine for the same offense
upon two persons thus differently circumstanced would be to mete out to
them a penalty of unequal severity; hence, unjustly discriminatory. (People vs.
Ching Kuan, 74 Phil. 23, 24)
But mitigating and aggravating circumstances are not

entirely disregarded. Factors other than financial
condition of accused may be considered by the court.
Art. 66 says that the court may also consider mitigating and aggravating
circumstances.
The court may also consider, in the imposition of the proper amount of
the fine, other factors, such as the gravity or seriousness of the crime
committed, the heinousness of its perpetration, and the magnitude of its
effects on the offender's victims. (People vs. Manuel,
CA-G.R. Nos. 14648-61-R, July 6, 1957)
PENALTY FOR INCOMPLETE CIRCUMSTANCES Art. 67 OF
ACCIDENT
741
Position and standing of accused considered aggravating
in gambling.
a. Where a person found guilty of violation of the Gambling Law is a man
of station or standing in the community, the maximum penalty should
be imposed. (U.S. vs. Salaveria, 39 Phil. 102,
113)
b. Because the accused in a gambling case was a municipal treasurer, the
Court imposed a fine of f*500 and one year imprisonment, the
maximum penalty provided by law. (U.S. vs. Mercader, 41 Phil. 930,
932)
Art. 67. Penalty to be imposed when not all the requisites of exemption of
the fourth circumstance of Article 12 are present. — When all the conditions
required in circumstance number 4 of Article 12 of this Code to exempt from
criminal liability are not present, the penalty of arresto mayor in its maximum
period to prision correccional in its m i n i m u m period shall be imposed
upon the culprit, if he shall have b e e n guilty of a grave felony, and arresto
mayor in its m i n i m u m and m e d i u m periods, if of a less grave felony.
Art. 67 applies only when all the requisites of the

exempting circumstance of accident are not present.
Circumstance No. 4 of Art. 12 refers to the exempting circumstance of
accident.
The conditions necessary to exempt from liability under Subsection 4 of
Art. 12 are four:
1. That the act causing the injury be lawful; that is, permitted not
only by law but also by regulations.
2. That it be performed with due care.
3. That the injury be caused by mere accident, i.e., by an unforeseen
event.
4. That there be no fault or intention to cause the injury.
Art. 68 PENALTY FOR PERSONS UNDER
18 YEARS
742
If all these conditions are not present, the act should be considered as
reckless imprudence if the act is executed without taking those precautions or
measures which the most common prudence would require; and simple
imprudence, if it is a mere lack of precaution in those cases where either the
threatened harm is not imminent or the danger is not openly visible. The case
will fall under Art. 365, par. 1.
The penalty provided in Art. 67 is the same as that in Art. 365.
Art. 68. Penalty to be imposed upon a person under eighteen years of age.
— When the offender is a minor under eighteen years and his case is one
coming under the provisions of the paragraph next to the last of Article 80 of
this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, w h o is not
exempted from liability by reason of the court having declared that he acted
with discernment, a discretionary penalty shall be imposed, but always lower
by two degrees at least than that prescribed by law for the crime w h i c h he
committed.
2. Upon a person over fifteen and under eighteen years of age the
penalty next lower than that prescribed by law shall be imposed, but always in
the proper period.*
Article 68 has been partly repealed by Republic Act No.

9344.
Article 68 of the Revised Penal Code which prescribes the penalty to be
imposed upon a person under eighteen (18) years of age has been partly
repealed by Rep. Act No. 9344 which provides that (1) a child fifteen years
and under is exempt from criminal responsibility, and (2) a child above fifteen
(15) years but below eighteen (18) years of age is exempt from criminal
liability unless he/she has acted with discernment. (Sec. 6, Rep. Act No. 9344)
*Partly repealed by Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006). See
explanations, infra.
PENALTY FOR INCOMPLETE JUSTIFYING OR Art. 69

EXEMPTING CIRCUMSTANCE
While an offender over nine (9) years but under fifteen (15) years who
acts with discernment is not exempt from criminal liability under Art. 68, and
743
a discretionary penalty shall be imposed which shall be always lower by two
degrees than that prescribed by law for the crime committed, said offender is
exempt from criminal liability under Rep. Act No. 9344; hence, no penalty
shall be imposed.
When an offender is over fifteen (15) but under eighteen (18) years of
age, the penalty next lower than that prescribed by law shall be imposed
under Art. 68, while under Rep. Act No. 9344, the offender shall be exempt
from criminal liability unless he/she acted with discernment.
If the offender acted with discernment, he/shall shall undergo diversion
programs provided under Chapter 2 of Rep. Act No. 9344.
If the court finds that the objective of the disposition measures imposed
upon the child in conflict with the law has not been fulfilled, or if the child in
conflict with the law has willfully failed to comply with the conditions of
his/her disposition or rehabilitation program, the child in conflict with the law
shall be brought before the court for execution of judgment. (Sec. 40, Rep. Act
No. 9344) The penalty to be imposed on the child in conflict with the law shall
be that provided for in paragraph 2 of Art. 68, that is, the penalty next lower
than that prescribed by law.
Probation as an alternative to imprisonment.

The court may, after it shall have convicted and sentenced a child in
conflict with the law, and upon application at any time, place the child on
probation in lieu of service of his/her sentence taking into account the best
interest of the child. For this purpose, Section 4 of Presidential Decree No.
968, otherwise known as the "Probation Law of 1976," is hereby amended
accordingly.
Art. 69. Penalty to be imposed when the crime committed is not wholly
excusable. — A penalty lower by one or two degrees than that prescribed by
law shall be imposed if the deed is not wholly excusable by reason of the lack
of some of the conditions required to justify the same or to exempt from
criminal liability in the several cases mentioned in Articles 11 and Art. 69
PENALTY FOR INCOMPLETE JUSTIFYING OR EXEMPTING
CIRCUMSTANCE
12, provided that the majority of such conditions be present. The courts shall
impose the penalty in the period which may be deemed proper, in view of the
number and nature of the conditions of exemption present or lacking.
744
Unlawful aggression is indispensable in self-defense,
defense of relatives and defense of stranger.
The first circumstance in self-defense, etc. (Subsections 1, 2 and 3 of
Art. 11), which is unlawful aggression must be present.
For instance, B, who was challenged by A to a fight, was the first to
attack A with a knife, whereupon A with similar weapon retaliated by
stabbing B, but in the struggle, B killed A.
Can B be given a reduction of one or two degrees lower than the penalty
prescribed for homicide?
Although the greater number of the conditions required to justify the
deed, that is, (1) reasonableness of the means employed and (2) lack of
sufficient provocation, is present, since the essential or primordial element of
unlawful aggression is lacking, he is not entitled to a reduction. (See U.S. vs.
Navarro, 7 Phil. 713)
There was no unlawful aggression, because there was an agreement to
fight between A and B. The latter accepted the challenge by attacking the
challenger A.
"In the several cases mentioned in Articles 11 and 12."

The privileged mitigating circumstances contemplated in Article 69
include the incomplete justifying and incomplete exempting circumstances,
provided the majority of their conditions is present.
"Provided the majority of such conditions be present."

In the case of People vs. Alvarez, 44 O.G. 946, the Court of Appeals
refused to apply this article because there was only unlawful aggression on the
part of the victim, but the means employed by the accused was not reasonable
and he (accused) provoked the aggression.
745
SUCCESSIVE SERVICE OF SENTENCES
Let us take a case of homicide in which the provocation and unlawful
aggression came from the deceased, but the means employed by the offender
was not reasonable.
In this case, there are present more than one of the requisites of self-
defense. (Guevara)
When two of the essential requisites for justification are present, the
penalty lower by two degrees may be imposed. (People vs. Dorado, 43 Phil. 240,
244-245; People vs. Lucero, 49 Phil. 160,162; People vs.
Almendrelejo, 48 Phil. 268, 276)
Where only unlawful aggression is present, the penalty next lower may
be imposed. (People vs. Cabellon, 51 Phil. 846, 852)
This decision is contrary to the provision of this Article which says:
"provided, the majority of such conditions be present."
"A penalty lower by one or two degrees than that prescribed by law shall be
imposed x x x in the period w h i c h may be deemed proper, in view of the
number and nature of the conditions of exemption present or lacking."
In view of this clause in Art. 69, the court has the discretion to impose
one or two degrees lower than that prescribed by law for the offense.
But in determining the proper period of the penalty one or two degrees
lower, the court must consider the number and nature of the conditions of
exemption or justification present or lacking.
When the majority of the requisites of self-defense and

two mitigating without aggravating circumstances are
present, the penalty is three degrees lower.
Thus, if the accused charged with homicide punishable by reclusion
temporal proved unlawful aggression on the part of the deceased and another
requisite of self-defense; plus two mitigating circumstances of surrender and
obfuscation, without any aggravating circumstance, the proper penalty for
him is arresto mayor medium or from 2 months and 1 day to 4 months.
Art. 70. Successive service of sentences. — When the culprit has to serve
two or more penalties, he shall serve them simultaneArt. 70
ously if the nature of the penalties will so permit; otherwise, the following
rules shall be observed:
746
SUCCESSIVE SERVICE OF SENTENCES Art. 70
In the imposition of the penalties, the order of their respective severity
shall be followed so that they may be executed successively or as nearly as may
be possible, should a pardon have been granted as to the penalty or penalties
first imposed, or should they have been served out.
For t h e p u r p o s e of a p p l y i n g t h e p r o v i s i o n s of the next
preceding paragraph the respective severity of the penalties shall be
determined in accordance with the following scale:
1. Death,
2. Reclusidn perpetua,
3. Reclusidn temporal,
4. Prisidn mayor,
5. Prisidn correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification,
10. Temporary absolute disqualification,
11. Suspension from public office, the right to vote and be voted for,
the right to follow profession or calling, and
12. Public censure.

Notwithstanding the provisions of the rule next preceding, the
maximum duration of the convict's sentence shall not be more than threefold
the length of time corresponding to the most severe of the penalties imposed
upon him. No other penalty to which he may be liable shall be inflicted after
the sum of those imposed equals the said maximum period.
S u c h m a x i m u m period shall in no case e x c e e d forty years.
In applying the provisions of this rule the duration of perpetual
penalties (pena perpetua) shall be computed at thirty years. (As amended by
Com. Act No. 217.)
Outline of the provisions of this Article:

1. When the culprit has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so permit.
747
SUCCESSIVE SERVICE OF SENTENCES
2. Otherwise, the order of their respective severity shall be followed.
3. The respective severity of the penalties is as follows:
a. Death,
b. Reclusion perpetua,
c. Reclusion temporal,
d. Prisidn mayor,
e. Prisidn correccional,
f. Arresto mayor,
g. Arresto menor,
h. Destierro,
i. Perpetual absolute disqualification,
j. Temporary absolute disqualification,

k. Suspension from public office, the right to vote and be voted for,
the right to follow profession or calling, and
1. Public censure.
The penalties which can be simultaneously served are:

(a) Perpetual absolute disqualification,
(b) Perpetual special disqualification,
(c) Temporary absolute disqualification,
(d) Temporary special disqualification,
748
THREE-FOLD RULE IN SERVICE Art. 70 OF
SENTENCES
Art. 70
(e) Suspension,
(f) Destierro,
(g) Public censure,

(h) Fine and bond to keep the peace,
(i) Civil interdiction, and
(J) Confiscation and payment of costs.

The above penalties, except destierro, can be served simultaneously with
imprisonment.
Penalties consisting in deprivation of liberty cannot be served
simultaneously by reason of the nature of such penalties.
The order of the respective severity of the penalties shall

be followed so that they may be executed successively.
Thus, where the convict was sentenced on October 28, 1905, to
imprisonment for 6 months for one offense, and on November 11, 1905, he was
sentenced to imprisonment for 4 months and 1 day for another offense, it was
held that he should serve the two terms successively and the time of the second
sentence did not commence to run until the expiration of the first. (Gordon vs.
Wolfe, 6 Phil. 76, 78)
Where the defendant was sentenced to three distinct terms of
imprisonment for the separate offenses of frustrated homicide, trespass, and
less serious physical injuries, the three penalties should be served successively
in the order of their severity. (People vs. Dola, 59 Phil. 134, 138)
Imprisonment must be served before destierro. Arresto menor is more
severe than destierro. (People vs. Misa, C.A., 36 O.G. 3697)
The three-fold rule.

According to the three-fold rule, the maximum duration of the convicts
sentence shall not be more than three times the length of time corresponding
to the most severe of the penalties imposed upon him.
Example: A person is sentenced to suffer — 14 years, 8 months and 1
day for homicide; 17 years, 4 months and 1 day in another case; 14 years and
749
THREE-FOLD RULE IN SERVICE OF
SENTENCES
8 months in the third case; and in a case of frustrated homicide, he is
sentenced to 12 years, or a total of 59 years, 8 months and 2 days.
The most severe of those penalties is 17 years, 4 months and 1 day.
Three times that penalty is 52 years and 3 days. But since the law has limited
the duration of the maximum term of imprisonment to not more than 40
years, the accused will have to suffer 40 years only. (See People vs. Alisub, 69
Phil. 362, 366; People
vs. Lagoy, G.R. No. L-5112, May 14,1954, 94 Phil. 1050 [Unrep.])
The phrase "the most severe of the penalties" includes

equal penalties.
Thus, the petitioner for habeas corpus who had been sentenced in six (6)
different cases of estafa, in each of which he was penalized with 3 months and
11 days of arresto mayor, cannot be made to suffer more than 3 months and 11
days multiplied by 3 or 9 months and 33 days.
Hence, the petitioner who was in jail for one year and three months
remained there beyond the period allowed under the threefold rule. (Aspra vs.
Director of Prisons, 85 Phil. 737, 738)
The three-fold rule applies only when the convict has to

serve at least four sentences.
If only two or three penalties corresponding to different crimes
committed by the convict are imposed, it is hardly possible to apply the three-
fold rule.
Illustration: A was convicted of three crimes of homicide for each of
which he was sentenced to 12 years and 1 day of reclusidn temporal. Adding all
the three penalties, you will find a total of 36 years and 3 days; or multiplying
one of the penalties, each of 12 years and 1 day, by 3 you will find the same
result.
Suppose, for the first homicide A was sentenced to 12 years and
1 day; for the second, 14 years, 8 months and 1 day; and for the third, 17
years, 4 months and 1 day; in this case, the total of all the penalties is 44 years
and 3 days. On the other hand, 17 years, 4 months and 1 day multiply by 3
equals 52 years and 3 days. The three-fold rule does not apply, because the
total of all the penalties is less than the most severe multiplied by 3.
750
SENTENCES
Art. 70
But if A was convicted of four crimes of homicide, for each of which he

was sentenced to 12 years and 1 day or to different penalties, the three-fold
rule can properly be applied.
Follow the same computation on the basis of four convictions, the fourth
penalty at least equal to any one of the penalties mentioned, and you will find
that the most severe multiplied by 3 is less than the sum total of all the
penalties.
If the sum total of all the penalties does not exceed the most severe multiplied by
3, the three-fold rule does not apply.
Thus, if A was sentenced to 1 year for theft, 2 years for robbery, 1 year
for estafa, 4 months for physical injuries, and 4 months and 1 day for slander,
the total of all the penalties being only 4 years, 8 months and 1 day, which is
less than 2 years multiplied by 3 or 6 years, the threefold rule does not apply.
The three-fold rule applies only when the total of all the penalties imposed
exceeds the most severe multiplied by 3.
All the penalties, even if by different courts at different

times, cannot exceed three-fold the most severe.
This rule, for the reason stated, should be followed irrespective of the
fact that the different offenses are charged in several informations, or are
included in a single prosecution, or the several cases are tried before the same
court or in different courts. (People vs. Geralde, 50 Phil. 823, 829)
The three-fold rule applies although the penalties were imposed for
different crimes, at different times, and under separate informations. (Torres
vs. Superintendent, 58 Phil. 847, 848) Reason for the ruling.
The Rules of Court specifically provide that an information must not
charge more than one offense. Necessarily, the various offenses punished with
different penalties must be charged under different informations which may
be filed in the same court or in different courts, at the same time or at
different times.
Duration of the convict's sentence refers to several

penalties for different offenses, not yet served out.
Note, however, that this rule applies only when the convict has to serve
continuous imprisonment for several offenses. If the convict already served
sentence for one offense, that imprisonment will not be considered, for the
751
SENTENCES
purpose of the three-fold rule, if after this release he commits again and is
convicted of new offenses. Note the opening sentence of Article 70 which says:
"When the culprit has to serve two or more penalties, he shall serve them
simultaneously if the nature of the penalties will so permit." Only penalties
which have not yet been served out can be served simultaneously.
No prisoner shall be required to remain in prison continuously for more
than 40 years. The duration of perpetual penalties is 30
years.
If the sentence is indeterminate, the maximum term is to be considered.

If the sentence is indeterminate, the basis of the three-fold rule is the
maximum term of the sentence. (People vs. Desierto, C.A., 45
O.G. 4542)
Subsidiary imprisonment forms part of the penalty.

The imposition of three-fold maximum penalty under Art.
70 does not preclude subsidiary imprisonment for failure to pay a fine.
The rule is to multiply the highest penalty by 3 and the result will be the
aggregate principal penalty which the prisoner has to serve, plus the payment
of all indemnities with or without subsidiary imprisonment, provided the
principal penalty does not exceed 6 years. (Bagtas vs. Director of Prisons, 84
Phil. 692, 698)
Example: A was found guilty in 17 criminal cases, the most severe of the
17 sentences being 6 months and 1 day plus a fine of PI,000, with subsidiary
imprisonment in case of insolvency.
After serving 18 months and 3 days in prison, A filed a petition for
habeas corpus, contending that under Art. 70, the maximum duration of his
sentence cannot exceed three-fold the length of time corresponding to the most
severe of the penalties imposed upon him, which in this case was 18 months
and 3 days. A further contended that the subsidiary imprisonment for
nonpayment of the fine should be eliminated, because Art. 70 provides that "no
other penalty to which he may be liable shall be inflicted after the sum total of
those imposed equals the maximum period."
Art. 70
The subsidiary imprisonment for nonpayment of the fine cannot be

eliminated so long as the principal penalty is not higher than 6
752
SENTENCES
years of imprisonment.
The provision of Art. 70 that "no other penalty to which he may be
liable shall be inflicted after the sum total of those imposed equals the said
maximum period," simply means that the convict shall not serve the excess
over the maximum of three-fold the most severe penalty. For instance, if the
aggregate of the principal penalties is six years and that is reduced to two
years under the three-fold rule, he shall not be required to serve the remaining
four years.
If the petitioner would not be able to pay the fine, the maximum
duration of his imprisonment shall be 18 months and 3 days of the principal
penalty plus 6 months and 1 day of subsidiary imprisonment for failure to pay
the fine, or a total of 2 years and 4 days. (See Bagtas vs. Director of Prisons,
supra)
Indemnity is a penalty.
The accused contended that in applying the three-fold rule, the court
should not have taken into account the indemnity of f*498 or its corresponding
subsidiary imprisonment.
Held: This contention is without merit for an indemnity, to all intents
and purposes, is considered a penalty, although pecuniary in character. Art. 70
makes no distinction between the principal penalty and subsidiary
imprisonment. (Arlinda vs. Director of Prisons, G.R. No. 47326)
Court must impose all the penalties for all the crimes of
which the accused is found guilty, but in the service of the
same, they shall not exceed three times the most severe
and shall not exceed 40 years.
The three-fold rule is applied, not in the imposition of the penalties, but
in connection with the service of the sentences imposed.
(People vs. Escares, 102 Phil. 677, 679; People vs. Jose, No. L-28232,
Feb. 6, 1971, 37 SCRA 450, 477; Dulpo vs. Sandiganbayan, No. L-
74652, May 21, 1987, 150 SCRA 138, 143)
Article 70 of the Revised Penal Code is concerned exclusively with the
"service" of sentence; it speaks of "duration" of penalty and
753
Art. 70
SENTENCES
penalty to "be inflicted." It has nothing to do with the imposition of the

proper penalty. Nowhere is it there envisioned that the court should make a
computation and, in its decision, sentence the culprit to not more than three-
fold the most severe of the penalties imposable upon him. Computation is for
the prison authorities to undertake. (People vs. Salazar, C.A, 61 O.G. 5913)
In the case of People vs. Mendoza, G.R. L-3271, May 5, 1950, it was held
that the accused were guilty of murders and that each of them must be
sentenced to suffer reclusion perpetua for each of the five murders, although
the duration of the aggregate penalties shall not exceed 40 years. In this case,
after serving one reclusion perpetua, which is computed at 30 years, the
accused will serve 10 years more. All the other penalties will not be served.
In the case of People vs. Lagoy, G.R. L-5112, May 14,1954, the accused
were sentenced to reclusidn perpetua for each of the three murders, to be
served continuously and successively, provided that, under Art. 70 of the
Revised Penal Code, the maximum or total period shall not exceed forty (40)
years. (See also People vs. Macatembal, Nos. L-17486-88, Feb. 27,1965, 13
SCRA 328, 333)
In the case of U.S. vs. Jamad, 37 Phil. 305, 311, the accused committed
four crimes, but the trial court imposed only death penalty for one of them.
Held: "All the penalties corresponding to the several violations of law"
should be imposed, to wit: (1) the penalty of death for parricide of his wife; (2)
the penalty of life imprisonment for the murder of L; (3) the penalty of life
imprisonment for the murder of I; and (4) the penalty of 12 years and 1 day of
reclusion temporal for the frustrated murder of T.
Two or more death penalties imposed on one convict.

Multiple death penalties are not impossible to serve because they will
have to be executed simultaneously. A cursory reading of Article 70 will show
that there are only two modes of serving two or more (multiple) penalties:
simultaneously or successively. The first rule is that two or more penalties shall
be served simultaneously if the nature of the penalties will so permit. In the
case of multiple capital penalties, the nature of said penal sanctions does not
only permit but actually necessitates simultaneous service.
Art. 70 THREE-FOLD RULE IN SERVICE
OF SENTENCES
754
GRADUATED SCALES OF LOWERING Art. 71
PENALTIES
The imposition of multiple death penalties, far from being a useless
formality, has practical importance. The sentencing of an accused to several
capital penalties is an indelible badge of his extreme criminal perversity,
which may not be accurately projected by the imposition of only one death
sentence irrespective of the number of capital felonies for which he is liable.
Showing thus the reprehensible character of the convict in its real dimensions,
the possibility of a grant of executive clemency is justifiably reduced in no
small measure. Hence, the imposition of multiple death penalties could
effectively serve as a deterrent to an improvident grant of pardon or
commutation. Faced with the utter delinquency of such a convict, the proper
penitentiary authorities would exercise judicious restraint in recommending
clemency or leniency in his behalf.
Granting, however, that the Chief Executive, in the exercise of his

constitutional power to pardon (one of the presidential prerogatives which is
almost absolute) deems it proper to commute the multiple death penalties to
multiple life imprisonments, then the practical effect is that the convict has to
serve the maximum of forty (40) years of multiple life sentences. If only one
death penalty is imposed, and then is commuted to life imprisonment, the
convict will have to serve a maximum of only thirty years corresponding to a
single life sentence. (People vs. Peralta, No. L-19069, Oct. 29, 1968, 25 SCRA
759, 785-786; People vs. Jose, No. L-28232, Feb. 6, 1971,
37 SCRA 450, 479)
Different systems of penalty.

There are three different systems of penalty relative to the execution of
two or more penalties imposed on one and the same accused. They are:
(1) The material accumulation system;
(2) The juridical accumulation system; and

(3) The absorption system (the lesser penalties are absorbed by the
graver penalties).
The material accumulation system.

Previous legislation adopted the theory of absolute accumulation of
crimes and penalties and established no limitation whatever and, accordingly,
all the penalties for all the violations were imposed even if they reached
beyond the natural span of human life. (Guevara)
Pars. 1, 2 and 3 of Art. 70 follow the material accumulation system.
The juridical accumulation system.
755
Pars. 4, 5 and 6 of Art. 70 are in accordance with the juridical
accumulation system. The service of the several penalties imposed on one and
the same culprit is limited to not more than three-fold the length of time
corresponding to the most severe and in no case to exceed 40 years.
The absorption system.

The absorption system is observed in the imposition of the penalty in
complex crimes (Art. 48), continuing crimes, and specific crimes like robbery
with homicide, etc.
Art. 71. Graduated scales. — In the cases in w h i c h the law prescribes a

penalty lower or higher by one or more degrees than another given penalty,
the rules prescribed in Article 61 shall be observed in graduating such
penalty.
The lower or higher penalty shall be taken from the graduated scale in
w h i c h is comprised the given penalty.
The courts, in applying such lower or higher penalty, shall observe the
following graduated scales:
SCALE NO. 1
1. Death
2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correccional
6. Arresto mayor
7. Destierro
756
PENALTIES
Art. 71
8. Arresto menor 9. Public censure 10. Fine.
SCALE NO. 2
1. Perpetual absolute disqualification

2. Temporary absolute disqualification
3. Suspension from public office, the right to vote and be voted
for, and the right to follow a profession or calling 4. Public censure
5. Fine.
Death shall no longer form part of the equation in the

graduation of penalties, pursuant to Rep. Act No. 9346.
The negation of the word "death" as previously inscribed in Article 71
will have the effect of appropriately downgrading the proper penalties
attaching to accomplices, accessories, frustrated and attempted felonies to the
level consistent with the rest of our penal
laws. Thus, a convicted accomplice in kidnapping for ransom, would now bear
the penalty of reclusion temporal, the penalty one degree lower than what the
principal would bear (reclusion perpetua). Such sentence would be consistent
with Article 52 of the Revised Penal Code, as well as Article 71, as amended, to
remove the reference to "death." Moreover, the prospect of the accomplice
receiving the same sentence as the principal, an anomalous notion within our
penal laws, would be eliminated. Thus, the same standard would prevail in
sentencing principals and accomplices to the crime of kidnapping in ransom,
as that prescribed to the crime of simple kidnapping.
The harmonization that would result if Rep. Act No. 9346 were
construed as having eliminated the reference to "death" in Article
71 would run across the board in our penal laws. Consistent with Article 51 of
the Revised Penal Code, those convicted of attempted qualified rape would
receive the penalty two degrees lower than that prescribed by law, now Rep.
Act No. 9346, for qualified rape.
There are principles in statutory construction that will sanction, even
mandate, this "expansive" interpretation of Rep. Act No. 9346. The maxim
interpretare et concordare legibus est optimus interpretandi embodies the
principle that a statute should be so construed not only to be consistent with
itself, but also to harmonize with other laws on the same subject matter, as to
form a complete, coherent and intelligible system—a uniform system of
757
GRADUATED SCALES OF LOWERING
PENALTIES
jurisprudence. "Interpreting and harmonizing laws with laws is the best
method of interpretation, x x x This manner of construction would provide a
complete, consistent and intelligible system to secure the rights of all persons
affected by different legislative and quasi-legislative acts." There can be no
harmony between Rep. Act No. 9346 and the Revised Penal Code unless the
later statute is construed as having downgraded those penalties attached to
death by reason of the graduated scale under Article 71. Only in that manner
will a clear and consistent rule emerge as to the application of penalties for
frustrated and attempted felonies, and for accessories and accomplices.
It is also a well-known rule of legal hermeneutics that penal or criminal
laws are strictly construed against the state and liberally in favor of the
accused. If the language of the law were ambiguous, the court will lean more
strongly in favor of the defendant than it would if the statute were remedial, as
a means of effecting substantial justice. The law is tender in favor of the rights
of an individual. It is this philosophy of caution before the State may deprive a
person of life or liberty that animates one of the most fundamental principles
in our Bill of Rights, that every person is presumed innocent until proven
guilty.
XXX
For purposes of legal hermeneutics, the critical question is whether Rep.

Act No. 9346 intended to delete the word "death" as expressly provided for in
the graduated scale of penalties under Article
71.
XXX
Since Article 71 denominates "death" as an element in the graduated

scale of penalties, there is no question that the operation of Article 71 involves
the actual application of the death penalty as a means of determining the
extent which a person's liberty is to be deprived. Since Rep. Act No. 9346
unequivocally bars the application of the death penalty, as well as expressly
repeals all such statutory provisions requiring the application of the death
penalty, such effect Art 71
necessarily extends to its relevance to the graduated scale of penal-

ties under Article 71.
XXX
758
PENALTIES
We cannot find basis to conclude that Rep. Act No. 9346 intended to
retain the operative effects of the death penalty in the graduation of the other
penalties in our penal laws.
XXX
Henceforth, "death," as utilized in Article 71 of the Revised Penal Code,

shall no longer form part of the equation in the graduation of penalties.
(People vs. Bon, G.R. No. 166401, Oct. 30, 2006)
Example.
In the case of an appellant convicted of attempted rape, the
determination of his penalty for attempted rape shall be reckoned not from
two degrees lower than death, but two degrees lower than reclusion
perpetua. Hence, the maximum term of his penalty shall no longer be
reclusion temporal, as ruled by the Court of Appeals, but instead,
prision mayor. (People vs. Bon, G.R. No. 166401, Oct. 30, 2006)
What is the penalty next lower in degree from arresto

mayort
Art. 71 provides in Scale No. 1 that the penalty next lower in degree
from arresto mayor is destierro.
The ruling in the case of Rivera vs. Geronimo, 76 Phil. 838, to the effect
that the penalty next lower from arresto mayor is arresto mennr may be
considered overruled by the ruling in the case of Uy Chin Hua vs. Dingalasan,
47 O.G., Supp. 12, 233.
According to the case of Uy Chin Hua vs. Dingalasan, the scale of
penalties in Art. 71 which places destierro below arresto mayor cannot be
disregarded and the respective severities of arresto mayor and destierro must
not be judged by the duration of each of these penalties, but by the degree of
deprivation of liberty involved. The penalty next lower in degree from arresto
mayor is destierro.
The metropolitan and municipal courts can impose

destierro.
Offenses penalized by destierro fall under the jurisdiction of justice of
the peace and municipal courts. (People vs. Santos, 87 Phil.
687,688)
Destierro, although a correctional penalty consisting in banishment (Art.
87) with a duration of 6 months and 1 day to 6 years (Art. 27) is considered
759
GRADUATED SCALES OF LOWERING
PENALTIES
not higher than arresto mayor which is imprisonment of 1 month and 1 day to
6 months.
Under the Judiciary Reorganization Act of 1980, Batas
Pambansa Big. 129, as amended by Rep. Act No. 7691, metropolitan trial
courts, municipal trial courts, and municipal circuit trial courts shall exercise
exclusive original jurisdiction over all offenses punishable with imprisonment
not exceeding six (6) years irrespective of the amount of fine, and regardless of
other imposable accessory or other penalties, including the civil liability
arising from such offenses or predicated thereon, irrespective of kind, nature,
value, or amount thereof: Provided, however, That in offenses involving
damage to property through criminal negligence they shall have exclusive
original jurisdiction thereof.
Must destierro be applied only when it is specifically

imposed by law?
No. Destierro may be imposed when it is the penalty next lower and the
circumstances require the imposition of a penalty one degree lower.
The penalty two degrees lower from arresto mayor in its medium and
maximum periods is destierro in its minimum and medium periods.
Penalty
prescribed
by law.
Arresto mayor
One degree
lower.
Destierro
Two degrees lower.
Arts. 25, 70 and 71, compared:

Under Art. 25, penalties are classified into (1) principal and (2)
accessory penalties. The principal penalties are subdivided into capital,
afflictive, correctional, and light.
Art. 70 classifies the penalties, for the purpose of the successive service
of sentences, according to their severity.
760
Art. 72 PREFERENCE IN THE PAYMENT OF
THE CIVIL LIABILITIES
Art. 71 provides for the scales which should be observed in graduating

the penalties by degrees in accordance with Art. 61. Note that in Art. 71,
destierro is placed above arresto menor. The reason for this is that destierro,
being classified as a correctional penalty, is
higher than arresto menor, a light penalty. Art. 71, par. 2, speaks of "lower or
higher" penalty. Art. 70 speaks of "severity."
Under Art. 70, destierro is placed under arresto menor, according to
their respective severity. Destierro is considered lighter than
arresto menor. Under Art. 25, destierro is placed above arresto menor, because
it is classified as a correctional penalty.
In Art. 71, the different principal penalties provided for in Art.
25 are classified and grouped into two graduated scales. Under Scale No. 1, all
personal penalties, such as deprivation of life and liberty, are grouped
together. Under Scale No. 2 are grouped all penalties consisting in deprivation
of political rights.
Art. 72. Preference in the payment of the civil liabilities. — The civil
liabilities of a person found guilty of two or more offenses shall be satisfied by
following the chronological order of the dates of the final judgments rendered
against him, beginning with the first in order of time.
The person guilty of two or more offenses has two or more

civil liabilities.
This article applies when the offender who is found guilty of two or
more offenses is required to pay the corresponding civil liabilities resulting
from different offenses.
The order of payment of civil liabilities is based on dates

of final judgments.
The order of payment of civil liabilities is not based on the dates of the
commission of the offense.
While criminal liability is satisfied by successive service of sentences in
the order of respective severity (Art. 70), civil liability is satisfied by following
the chronological order of the dates of the final judgments.
761
INCREASE OR REDUCTION OF FINE
PRESUMPTION AS TO ACCESSORY PENALTIES Arts. 73-74
WHEN DEATH IS THE HIGHER PENALTY
Section Three. — Provision common to the last two preceding sections.
Art. 73. Presumption in regard to the imposition of accessory penalties. —

Whenever the courts shall impose a penalty which by provision of law, carries
with it other penalties, according to the provisions of Articles 40, 41, 42, 43, 44,
and 45 of this Code, it must be understood that the accessory penalties are also
imposed upon the convict.
Accessory penalties are deemed imposed.

The accessory penalties provided for in Arts. 40 to 45 are deemed
imposed by the courts without the necessity of making an express
pronouncement of their imposition.
In a case, the Solicitor General suggested that the decision below be
modified to show expressly that appellants were also sentenced to the
accessory penalties provided by law. It was held that there was no necessity
for such modification, as the accessory penalties are deemed imposed. (People
vs. Baltazar, CA-G.R. No. 14882-R, May 25, 1956)
According to the case of People vs. Perez, 47 Phil. 984, accessory
penalties are never presumed to be imposed. This is because under Art. 90 of
the old Penal Code, the accessory penalties are to be imposed expressly.
Subsidiary imprisonment, not an accessory penalty.

Subsidiary imprisonment is not an accessory penalty and therefore, the
judgment of conviction must expressly state that the offender shall suffer the
subsidiary imprisonment in case of insolvency. (People vs. Fajardo, 65 Phil.
539, 542)
Art. 74. Penalty higher than reclusidn perpetua in certain cases.

— In cases in which the law prescribes a penalty higher than another given
penalty, without specifically designating the name of the former, if such higher
penalty should be that of death, the same penalty and the accessory penalties
of Article 40, shall be considered as the next higher penalty.
Art. 75
762
Death cannot be the penalty next higher in degree when
not provided by law.
Suppose that an employee of the Registry Section of the Bureau of Posts
stole a registered package of diamonds worth r*250,000. The penalty for
simple theft involving that amount is reclusion temporal. (Art. 309) The
property stolen being mail matter, the crime is qualified theft and "shall be
punished by the penalties (penalty) next higher by two degrees." (Art. 310)
Under Art. 71, "in the cases in which the law prescribes a penalty x x x higher
by one or more degrees than another given penalty," two degrees higher than
reclusidn temporal would be death according to Scale No. 1 in said article.
But under the provisions of Art. 74, when a given penalty has to be
raised by one or two degrees and the resulting penalty is death according to
the scale, but is not specifically provided by law as a
penalty, the latter cannot be imposed. The given penalty (reclusidn temporal)
and the accessory penalties of death when not executed by reason of
commutation or pardon (Art. 40) shall be imposed.
Application of this article.

The Code has meant to say here that the judgment should provide that
the convict should not be given the benefit of Art. 27 (that he should be
pardoned after undergoing the penalty for 30 years) until 40 years have
elapsed; otherwise, there would be no difference at all between reclusidn
perpetua when imposed as the penalty next higher in degree and when it is
imposed as the penalty fixed by law. (Albert) In this opinion, the given penalty
is reclusidn perpetua.
Reason for the provision of this article.

The penalty higher than reclusidn perpetua cannot be death, because the
penalty of death must be specifically imposed by law as a penalty for a given
crime.
Art. 75. Increasing or reducing the penalty of fine by one or more degrees.
— Whenever it m a y be necessary to increase or reduce the penalty of fine by
one or more degrees, it shall be increased or reduced, respectively, for each
degree, by onefourth of the m a x i m u m amount prescribed by law, without
however, changing the minimum.
763
Art. 75
The same rules shall be observed with regard to fines that do not consist
of a fixed amount, but are made proportional.
Fines are graduated into degrees for the accomplices and

accessories and for the principals in frustrated and
attempted
felonies.
Fines are also graduated into degrees for the imposition of the proper
amount of the fine on accomplices and accessories or on the principals in
frustrated or attempted felonies. (Arts. 50 to 57)
Examples of reducing fine by one or two degrees.

Suppose the fine is from P200 to P2,000. To find each degree is to take
1/4 of P2,000 or f*500. The minimum of P200 is not changed. For each degree,
take P500 from the maximum of the next higher degree.
Therefore, one degree lower would be P200 as minimum to PI,500 as
maximum.
And two degrees lower would be P200 as minimum to P1,000 as
maximum.
For the guidance of the bench and bar, in reducing the penalty of fine
by one or more degrees, the basis for the reduction of the first as well as the
second degree must necessarily be the penalty prescribed by law for the
consummated felony. Thus, where the maximum fine fixed for the
consummated offense is not more than P2,000, the fine for the frustrated
felony is determined by reducing the maximum by one-fourth, which is
Pl,500.00. Reducing it further by one degree for attempted felony, the second
reduction by one-fourth should be based on P2,000, not on the penalty as
reduced (Pl,500.00) so that the maximum fine as reduced by two degrees
would be PI,000.00. (De los Angeles vs. People, 103 Phil. 295, 297-298)
Example of increasing fine by one degree.
Let us suppose that a certain crime is punished with a fine of not less
than P200 and not more than P6,000. One-fourth of the maximum of P6,000
is Pl,500. The fine immediately higher in degree in accordance with this
article will be from P200.00 to P7.500.00.
764
LEGAL PERIOD OF DIVISIBLE PENALTIES Art. 76
Art. 75
"Without changing the minimum."

This article specifically mentions the word "minimum" of the fine.
Under this article, the fine must have a minimum and a maximum fixed by
law.
A, a minor fifteen years and two months old, committed acts tending to
prevent the meeting of a provincial board under Art. 143. The penalty is
prision correccional or a fine from P200 to P2.000 or both. Being a minor, A
must be given a penalty one degree lower in accordance with Article 68. The
penalty one degree lower is arresto mayor or a fine from P200 to PI,500. Under
Art. 75, the court cannot change the minimum of P200, even if the offender is
a poor man. (See People vs. Rodriguez, G.R. No. L-6300, April 20,
1954)
This article, therefore, does not apply when the law does not fix the
minimum of the fine.
Determination of amount of reduced fine.

There are cases where it becomes necessary to reduce the fines, because
the penalty has to be lowered by one or two degrees. In determining the
amount of the reduced fine, a distinction should be made between cases where
the minimum of the fine is fixed by law and those where the minimum is not
fixed by law.
In Articles 143, 144 and 150, for instance, the Code fixes the minimum
as well as the maximum of the fines. In Articles 114, 115 and 129, for instance,
the minimum of the fine is not fixed.
When the minimum is not fixed by law.

When only the maximum of the fine is fixed, the determination of the
amount to be imposed is left to the sound discretion of the courts, without
exceeding the maximum authorized by law. (People vs. Quinto, 60 Phil. 351,
357)
Distinctions between fine with a minimum and fine without

a minimum.
1. In both, the law fixes the maximum of the fine.
2. When the law fixes the minimum of the fine, the court cannot change
that minimum; whereas, when the law does not state
765
the minimum of the fine but only the maximum, the court can impose
any amount not exceeding such maximum.
3. When the law fixes both the minimum and the maximum, the court can
impose an amount higher than the maximum; whereas, when only the
maximum is fixed, it cannot impose an amount higher than the
maximum.
As to "fines that do not consist of a fixed amount, but are made proportional."
The last paragraph of this article speaks of fines which are not of fixed
amount, but are made proportional.
Examples:
When the negligent act resulted in damage to property of another, the
fine shall be from an amount equal to the value of the damage to three times
such value, but shall in no case be less than 25 pesos. (Art. 365, par. 3)
In the crime of direct bribery (Art. 210) involving a bribe of P2,300, the
maximum fine is f*6,900 (three times the value of the gift), and that amount
(f*6,900) should be the basis for lowering the penalty by two degrees, which is
the penalty for attempted bribery. (De los Angeles vs. People, 103 Phil. 295,
298-299)
In this case, the minimum of the fine is r*2,300 and the maximum is
f*6,900. The fine for attempted bribery is determined, as follows: Take one-
fourth of P6,900, which is f*l,725. Reducing the maximum by one-fourth, we
have r*5,175. Reducing it further by one-fourth of the maximum, we have
P3,450. This amount is the maximum of the fine for attempted bribery. The
court can fix any amount of the fine from f*2,300 to f*3,450.
Art. 76. Legal period of duration of divisible penalties. — The legal

period of duration of divisible penalties shall be considered as divided into
three parts, forming three periods, the minimum, the medium, and the
maximum in the manner
shown in the following table. (See p. 768)
766
LEGAL PERIOD OF DIVISIBLE PENALTIES
Art. 76
Article 76 shows the manner divisible penalties are divided into three
periods.
For instance, the time included in each of the periods of reclusidn temporal is determined, as
follows:
(1) Reclusidn temporal has a duration of from 12 years and 1 day as the minimum, to 20
years, as the maximum.
(2) Subtract the minimum (disregarding the 1 day) from the maximum; thus —
20 years - 12 years = 8 years
(3) Divide the difference by 3; thus —
8 years + 3 = 2 years and 8 months.
(4) Use the minimum of 12 years and 1 day of reclusidn temporal as the minimum of the
minimum period. Then add 2 years and 8 months to the minimum (disregarding the 1
day) to get the maximum of the minimum period. Thus, we have 14 years and 8 months
as the maximum of the minimum period. The range of the minimum period is, therefore,
12 years and 1 day to 14 years and 8 months.
(5) Use the maximum of the minimum period as the minimum of the medium period, and
add 1 day to distinguish it from the maximum of the minimum period; we have 14 years,
8 months and 1 day. Then add 2 years and 8 months to the minimum of the medium
period (disregarding the 1 day); we have 17 years and 4 months, as the maximum of the
medium period. The range of the medium period is, therefore, 14 years, 8 months and 1
day to 17 years and 4 months.
(6) Use the maximum of the medium period as the minimum of the maximum period, and
add 1 day to distinguish it from the maximum of the medium period; we have 17 years, 4
months and 1 day. Then add 2 years and 8 months to the minimum of the maximum
period (disregarding the 1 day); and we have 20 years. Hence, the range of the maximum
period is 17 years, 4 months and 1 day to 20 years.
When the penalty is composed of three periods corresponding to different

divisible penalties.
If the Revised Penal Code prescribes the penalty of prision correccional in its medium and
maximum periods to prisidn mayor in its minimum period, what is the duration of each of its three
periods?
The time included in the prescribed penalty is from 2 years, 4 months and 1 day to 8 years.
767
Must the duration of each of the three periods of the prescribed penalty be that of the period
of the corresponding divisible penalty included in the prescribed penalty, as follows:
Minimum — 2 years, 4 months and 1 day to 4 years and 2 months
(the medium of prisidn correccional),
Medium — 4 years, 2 months and 1 day to 6 years (the maximum
of prisidn correccional), and
Maximum — 6 years and 1 day to 8 years (the minimum of

prisidn mayor),
or must the time included in the prescribed penalty be divided into three equal portions, each to
form one period, as follows:
Minimum — 2 years, 4 months and 1 day to 4 years, 2 months and 20 days,
Medium — 4 years, 2 months and 21 days to 6 years, 1 month and 10 days, and
Maximum — 6 years, 1 month and 11 days to 8 years?

It will be noted that, in the first, the duration of the minimum period of the penalty is the time
included in the medium period of
prisidn correccional; the duration of the medium period of the penalty is the time included in the
maximum period of prisidn correccional; and the duration of the maximum period is the time
included in the minimum period of prisidn mayor. The penalty is not divided into three equal parts
to form the three periods. While the time included in its minimum and medium periods is 1 year
and 8 months, the time included in its maximum period is 2 years.
It seems that the intention of the Legislature when it enacted the law (Revised Penal Code) is
to give the three periods of a diTABLE SHOWING THE DURATION OF DIVISIBLE
PENALTIES
AND THE TIME INCLUDED IN EACH OF THEIR PERIODS
alties Time included in Time included Time included Time inclu the
penalty in its in its minimum in its medium in its maxim
entirety period period period
tempo- F r o m 12 y e a r s From 12 years and From 14 years, 8 From 17 ye and 1

day to 20 1 day to 14 years months and 1 day months and years.
and 8 months. to 17 years and 4 to 20 years
months.
mayor, ab- From 6 years and 1 From 6 years and 1 From 8 years and 1 From 10 yea
disquali- day to 12 years. day to 8 years. day to 10 years. 1 day to 12
ion and
al tempodisqualifi-
n.
LEGAL PERIOD OF DIVISIBLE PENALTIES Art. 76
correc- From 6 m o n t h s From 6 months and From 2 years, 4 From 4 yea
suspen- and 1 day to 6 1 day to 2 years months and 1 day months and
and destie- years. and 4 months. to 4 years and 2 to 6 years. months.
mayor. From 1 month From 1 to 2From
2 m o n t h s From 4 month and 1 day to 6 months. and 1
day to 4 day to 6 m months. months.
menor. From 1 to 30 days. From 1 to 10 days. From 11 to 20 days. From 21 to 30
769
Art. 76
LEGAL PERIOD OF DIVISIBLE PENALTIES
visible penalty equal or uniform duration. Even in cases in which the penalty
prescribed by law is not composed of three periods, the courts shall divide
"into three equal portions the time included in the penalty prescribed, x x x
forming one period of each of the three portions." (Art. 65)
It is noted that Art. 76 provides that "divisible penalties shall be
considered as divided into three parts, forming three periods," without stating
that the three parts must be the three equal portions of the time included in
the divisible penalties, but the time included in each of the divisible penalties
mentioned in the table in that article, except that of arresto mayor, is divided
into three equal portions.
It may be argued that the duration of each of the periods of those
divisible penalties is fixed by Art. 76 and must be maintained even if it is
included in a different three-period penalty. But Art. 76 does not even
remotely suggest it. On the contrary, the phrase in that article, which reads:
"in the manner shown in the following table," indicates merely the way or
method of dividing into three periods the divisible penalties as those
mentioned in the table.
Those which are fixed in the table are respectively the periods of the
divisible penalties mentioned therein. To maintain the durations of those
periods even when one or two of them form part of a prescribed three-period
penalty is to give the periods of the prescribed penalty different durations as
earlier indicated. It would be the only divisible penalty where the duration of
one of its three periods is not equal to that of the others. When the prescribed
penalty does not have three periods, it has to be divided into three equal
portions for the application of the rules contained in Art. 64. When the
penalty prescribed is any of the divisible penalties enumerated in Art. 25, its
three periods, except those of arresto mayor, are the three equal portions of the
divisible penalty. The penalty composed of several periods corresponding to
different divisible penalties cannot be the exception, for there is no legal or
practical basis for the exception.
It is clear that the duration of each of the periods of the divisible
penalties as fixed in the table in Art. 76 of the Revised Penal Code is not
controlling when the penalty prescribed is composed of three periods
corresponding to different divisible penalties.
Art. 77 COMPLEX PENALTY
The division of arresto mayor into three equal periods

does not follow the rule.
770
According to the table prepared under Art. 76, the three periods of
arresto mayor are:
Minimum period — 1 month and 1 day to 2 months.
Medium period — 2 months and 1 day to 4 months.
Maximum period — 4 months and 1 day to 6 months.
Distinction between "period" and "degree."

TheRevised Penal Code, unlike the old Penal Code, clearly establishes a
distinction between "period" and "degree," by designating as a "period" each
of the three equal parts of a divisible penalty and designating as a "degree"
the diverse penalties mentioned by name in the Revised Penal Code. (People
vs. Padilla, 36 O.G. 2404)
Art. 77. When the penalty is a complex one composed of three distinct
penalties. — In cases in w h i c h the law prescribes a penalty composed of
three distinct penalties, each one shall form a period; the lightest of them shall
be the minimum, the next the medium, and the most severe the m a x i m u m
period.
Whenever the penalty prescribed does not have one of the forms
specially provided for in this Code, the periods shall be distributed, applying
by analogy the prescribed rules.
What is a complex penalty?

It is a penalty prescribed by law composed of three distinct penalties,
each forming a period; the lightest of them shall be the minimum, the next the
medium, and the most severe the maximum period. (Art. 77)
When the penalty is composed of three distinct penalties.

When the law prescribes a penalty composed of three distinct penalties,
each one shall form a period.
770
COMPLEX PENALTY Art. 77
Example: Reclusidn temporal to death (Art. 114).
771
Maximum — Death.
Medium — Reclusidn perpetua (this is between reclusidn temporal and
death).
Minimum — reclusidn temporal.
Application by analogy of the rules.

Examples:
1. Art. 114, par. 3, provides a penalty of prisidn mayor to death. The
penalty is composed of four distinct penalties, namely, prisidn
mayor, reclusidn temporal, reclusidn
perpetua, and death.
The maximum period must be death, it being indivisible; the
medium period must be reclusidn perpetua, it being also
indivisible; and the minimum period must be composed of prisidn
mayor and reclusidn temporal.
2. Art. 294, par. 2, provides a penalty of reclusidn temporal in its
medium period to reclusidn perpetua. The penalty is composed of
two distinct penalties.
The maximum is reclusidn perpetua, it being indivisible; the
medium is reclusidn temporal in its maximum period; and the
minimum is reclusidn temporal in its medium period.
INDETERMINATE SENTENCE LAW

(Act No. 4103 as amended by Act No. 4225)
AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE

AND PAROLE FOR ALL PERSONS CONVICTED OF
CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE
ISLANDS; TO CREATE A BOARD OF INDETERMINATE SENTENCE
AND TO PROVIDE F U N D S THEREFOR AND FOR OTHER
PURPOSES.
SECTION 1. Hereafter, in imposing a prison sentence for an offense

punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum of which
shall be within the range of the penalty next lower to that prescribed by the
Code for the offense; and if the offense is punished by any other law, the court
shall sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and the minimum shall
not be less than the minimum term prescribed by the same. (As
amended by Act No. 4225)
SECTION 2. This Act shall not apply to persons convicted of offenses
punished with death penalty or life-imprisonment; to those convicted of
treason, conspiracy or proposal to commit treason; to those convicted of
misprision of treason, rebellion, sedition or espionage; to those convicted of
piracy; to those who are habitual delinquents; to those who shall have escaped
from confinement or evaded sentence; to those who having been granted
conditional pardon by the Chief Executive shall have violated the terms
thereof; to those whose maximum term of imprisonment does not exceed one
year, nor to those already sentenced by final judgment at the time of approval
of this Act, except as provided in Section five hereof. (As amended by Act No.
4225)
SECTION 3. There is hereby created a Board of Pardons and
Parole to be composed of the Secretary of Justice who shall be its
772
773
chairman, and four members to be appointed by the President, with the
consent of the Commission on Appointments who shall hold office for a term
of six years: Provided, That one member of the board shall be a trained
sociologist, one a clergyman or educator, one psychiatrist unless a trained
psychiatrist be employed by the board, and the other members shall be
persons qualified for such work by training and experience. At least one
member of the board shall be a woman. Of the members of the present board,
two shall be designated by the President to continue until December thirty,
nineteen hundred and sixty-nine. In case of any vacancy in the membership of
the Board, a successor may be appointed to serve only for the unexpired
portion of the term of the respective members. (As amended by R.A. No. 4203,
approved June 19, 1965.)
SECTION 4. The Board of Pardons and Parole is authorized to adopt
such rules and regulations as may be necessary for carrying out its functions
and duties. The Board is empowered to call upon any bureau, office, branch,
subdivision, agency, or instrumentality of the Government for such assistance
as it may need in connection with the performance of its functions. A majority
of all the members shall constitute a quorum and a majority vote shall be
necessary to arrive at a decision. Any dissent from the majority opinion shall
be reduced to writing and filed with the records of the proceedings. Each
member of the Board, including the Chairman and Executive Officer, shall be
entitled to receive as compensation Fifty pesos for each meeting actually
attended by him, notwithstanding the provisions of Sec. 259 of the Revised
Administrative Code, and in the addition thereto, reimbursement of actual
and necessary traveling expenses incurred in the performance of duties:
Provided, however, That the Board meeting will not be more than three times a
week. (As amended by R.A. No. 4203, approved June 19, 1965.)
SECTION 5. It shall be the duty of the Board of Indeterminate
Sentence to look into the physical, mental and moral record of the prisoners
who shall be eligible to parole and to determine the proper time of release of
such prisoners. Whenever any prisoner shall have served the minimum
penalty imposed on him, and it shall appear to the Board of Indeterminate
Sentence, from the reports of the prisoner's work and conduct which may be
received in accordance with the rules and regulations prescribed and from the
study and investigation made by the Board itself, that such prisoner is fitted
by his training for release that there is a reasonable probability that such
prisoner
will live and remain at liberty without violating the law, and that such
release will not be incompatible with the welfare of society, said Board of
774
Indeterminate Sentence may, in its discretion, and in accordance with the
rules and regulations adopted hereunder, authorize the
release of such prisoner on parole, upon such terms and conditions as are
herein prescribed and as may be prescribed by the Board. The said Board of
Indeterminate Sentence shall also examine the records and status of prisoners
who shall have been convicted of any offense other than those named in
Section two hereof, and have been sentenced for more than one year by final
judgment prior to the date on which this Act shall take effect, and shall make
recommendations in all such cases to the Governor General (President of the
Philippines) with regard to the parole of such prisoners as they shall deem
qualified for parole as herein provided, after they shall have served a period of
imprisonment not less than the minimum period for which they have been
sentenced under this Act for the same offense.
SECTION 6. Every prisoner released from confinement on parole by
virtue of this Act shall, at such times and in such manner as may be required
by the conditions of his parole, as may be designated by the said Board for
such purpose, report personally to such government officials or other parole
officers hereafter appointed by the Board of Indeterminate Sentence for a
period of surveillance equivalent to the remaining portion of the maximum
sentence imposed upon him or until final release and discharge by the Board
of Indeterminate Sentence as herein provided, x x x. The limits of residence of
such paroled prisoner during his parole may be fixed and from time to time
changed by the said Board in its discretion. If during the period of surveillance
such paroled prisoner shall show himself to be a law-abiding citizen and shall
not violate any of the laws of the Philippine Islands, the Board of
Indeterminate Sentence may issue a final certification of release in his favor,
which shall entitle him to final release and discharge.
SECTION 7. The Board shall file with the court which passed judgment
on the case and with the Chief of Constabulary, a certified copy of each order
of conditional or final release and discharge issued in accordance with the
provisions of the next preceding two sections.
SECTION 8. Whenever any prisoner released on parole by virtue of this
Act shall, during the period of surveillance, violate any of the conditions of his
parole, the Board of Indeterminate Sentence may issue an order for his arrest
which may be served in any part of the Philippine Islands by any police
officer. In such case the prisoner so rearrested shall serve the remaining
unexpired portion of the maximum sentence for which he was originally
committed to prison, unless the Board of Indeterminate Sentence shall, in its
discretion, grant a new parole to the said prisoner. (As amended by Act No.
4225) x x x
775
The court must determine two penalties.
The court must, instead of a single fixed penalty, determine two
penalties, referred to in the Indeterminate Sentence Act as the "MAXIMUM"
and "MINIMUM" terms.
The law should be applied in imposing a prison sentence for a crime
punishable either by special law or by the Revised Penal Code.
When the crime is punished by a special law —

If the offense is punished by a special law, the court shall sentence the
accused to an indeterminate penalty, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum term shall not be less
than the minimum prescribed by the same. (Sec. 1, Act No. 4103)
When the crime is punished by the Code —

If the offense is punished by the Revised Penal Code, the court shall
sentence the accused to an indeterminate penalty, the maximum term of which
shall be that which, in view of the attending circumstances, could be properly
imposed under the rules of the Revised Penal Code, and the minimum term of
which shall be within the range of the penalty next lower to that prescribed by
the Code for the offense. (Sec. 1, Act No. 4103 as amended by Act No. 4225)
The court cannot put the minimum penalty in the same period and the
same degree as the maximum penalty, because the minimum penalty "shall be
within the range of the penalty next lower to that prescribed by the Code for
the offense."
The penalty next lower must be based on the penalty prescribed by the
Code for the offense, without considering in the meantime the
776
modifying circumstances, such as, the mitigating or aggravating

circumstances. (People vs. Gonzales, 73 Phil. 549, 552)
In determining the "minimum" penalty, Act No. 4103, as amended,
confers upon the courts in fixing the penalties the widest discretion that the
courts have ever had. (People vs. Ducosin, 59 Phil.
109,116; Basan vs. People, No. L-39483, Nov. 29,1974,61 SCRA 275,
277)
In determining the minimum term, it is left entirely within the discretion
of the court to fix it anywhere within the range of the penalty next lower
without reference to the periods into which it may be subdivided. (People vs.
Ducosin, supra, at 117)
Under the Indeterminate Sentence Law (Act No. 4103, as amended), if
the offense is punishable under the Revised Penal Code, the minimum penalty
should be within any of the periods of the penalty next lower in degree to that
prescribed by law, and the maximum thereof should be within the proper
period of the penalty that may be imposed were the sentence is a straight
penalty. (Basan vs. People, supra, at 277)
Note: This is not in accordance with the ruling in People vs. Ducosin,
supra.
The mitigating or aggravating circumstance is required to be considered

only in the imposition of the maximum term of the indeterminate sentence.
(People vs. De Joya, 98 Phil. 238, 240)
Hence, if the minimum term of the indeterminate sentence is arresto
mayor in its minimum and medium periods, which has a duration of 2 months
and 1 day to 4 months, the court may impose 4 months of imprisonment, even
if there is no aggravating circumstance.
For the same reason, the court may impose 2 months and 1 day, even if
there is an aggravating circumstance, it being discretionary to the court to
impose the minimum term anywhere within its range.
When there is a privileged mitigating circumstance, so that the penalty
has to be lowered by one degree, the starting point for determining the
minimum term of the indeterminate penalty is the
penalty next lower from that prescribed by the Code for the offense.
(People vs. Gonzales, 73 Phil. 549, 552)
Examples of application of Indeterminate Sentence Law —
777
Under Special law:

A is convicted of illegal possession of firearm punishable by
imprisonment from one year and one day to five years.
The court can impose an indeterminate sentence from 2 years and 1 day,
as the minimum term, to 4 years, as the maximum term; 2 years and 1 day to 3
years; or 3 years and 1 day to 5 years.
The maximum term of each of the different examples does not exceed
the maximum of 5 years prescribed by the law, and the minimum term is not
less than the minimum of 1 year and 1 day prescribed by the said law.
Under the Revised Penal Code:

A is convicted of falsification of official document committed by a public
officer penalized by prision mayor. There is one mitigating
circumstance of plea of guilty.
To determine the penalty next lower, disregard first the mitigating
circumstance of plea of guilty. Hence, prision mayor in its full extent, the
penalty prescribed by the Code for the offense, should be the basis, and not
prision mayor minimum, because it is not the penalty "prescribed by the Code
for the offense."
Prision mayor minimum becomes the proper penalty only because of the
presence of the mitigating circumstance of plea of guilty. The penalty next
lower is prisidn correccional.
Therefore, the indeterminate sentence will be:
MAXIMUM — prisidn mayor minimum, in its proper period after

considering the mitigating circumstance.
MINIMUM — prisidn correccional, in any of its periods or anywhere
within the range of prision correccional without
reference to any of its periods.
The maximum term is determined according to the rules of

the Code.
The maximum term of the indeterminate penalty is determined in any
case punishable under the Revised Penal Code in accordance with the rules
and provisions of the Code exactly as if the Indeterminate Sentence Law had
never been enacted.
778
The rules and provisions which must be applied to determine the

maximum term of the indeterminate penalty are those provided in Arts. 46,
48, 50 to 57, 61, 62 (except par. 5), 64, 65, 68, 69, and 71.
The rules of the Code are not applicable in fixing the

minimum term.
The rules and provisions in those articles, particularly Arts. 50 to 57, 62,
64 and 65, are not applicable in fixing the minimum term of the indeterminate
penalty. The duration of the minimum term is within the range of the penalty
next lower to that prescribed by the Code for the offense, without regard to its
three periods. The court has the discretion to fix as the minimum term any
period of imprisonment within the penalty next lower to that prescribed by the
Code for the offense.
When modifying circumstances considered.

Under the Indeterminate Sentence Law, the maximum term of the
penalty shall be 'that which, in view of the attending circumstances, could be
properly imposed' under the Revised Penal Code, and the minimum shall be
'within the range of the penalty next lower to that prescribed' for the offense,
without first considering any modifying
circumstance attendant to the commission of the crime. The determination of
the minimum penalty is left by law to the sound discretion of the court and it
can be anywhere within the range of the penalty next lower without any
reference to the periods into which it might be subdivided. The modifying
circumstances are considered only in the imposition of the maximum term of the
indeterminate sentence. (People vs. Gabres, 267 SCRA 581)
Illustrations of indeterminate penalty based on Arts. 48,

61, 64, 68, 69, etc. of the Revised Penal Code.
1. Indeterminate penalty, when neither mitigating circumstance nor
aggravating circumstance attended the commission of the crime. (Art. 64,
par. 1)
A was prosecuted for, and was found guilty after a regular trial of,
homicide under Art. 249 which prescribes the penalty
779
of reclusidn temporal. There being no mitigating or aggravating

circumstance, the maximum term of the indeterminate penally, which is
reclusidn temporal, should be imposed in the medium period. (Art. 64, par.
1) The minimum term of the indeterminate penalty is anywhere within the
range of prisidn mayor, the penalty next lower from reclusidn temporal (Art.
71), with or without reference to the period into which it may be subdivided.
Indeterminate penalty, when there is one ordinary mitigating circumstance.
(Art. 64, par. 2)
In the preceding example, if A pleaded guilty before the presentation
of evidence by the prosecution, there being no aggravating circumstance to
offset it, the maximum term of the indeterminate penalty, which is reclusidn
temporal, should be imposed in the minimum period. (Art. 64, par. 2) The
minimum term of the indeterminate penalty is also anywhere within the
range of prisidn mayor, the penalty next lower from reclusidn temporal, with
or without reference to the period into which it may be subdivided. His plea
of guilty is required to be considered (by way of mitigation) only in the
imposition of the maximum term of his sentence. (People vs. De Joya, 98
Phil. 238, 240)
Indeterminate penalty, when there is only an aggravating circumstance. (Art.
64, par. 3)
In the example under No. 1, if in the execution of the crime concurred
the generic aggravating circumstances of relationship (Art. 15, R.P.C.) and
that it was committed with insult or in disregard of the respect due the
offended party on account of his rank or age (Art. 14, No. 3, R.P.C), which
shall be merged into one circumstance (People vs. Kho Choc, 50 O.G. 1667),
the penalty imposable on A is reclusidn temporal in its maximum period.
(Art. 64, No. 3, R.P.C.) The minimum term of the indeterminate penalty is
also anywhere within the range of
prisidn mayor with or without reference to the period into which it may be
subdivided.
Indeterminate penalty, when there are mitigating and aggravating
circumstances. (Art. 64, par. 4)
In the example under No. 1, if after committing homicide at
nighttime purposely sought by A to better accomplish his purpose (Art. 14,
par. 6), he surrendered voluntarily to the agent
779

of authority and during the arraignment pleaded guilty to the charge (Art.
13, par. 7), there is one mitigating circumstance left after offsetting the
aggravating circumstance of nighttime with the two mitigating
circumstances. Hence, the penalty of reclusion temporal should be imposed
in the minimum period.
(Art. 64, par. 4)
The MAXIMUM of the indeterminate penalty is reclusion temporal
minimum and the MINIMUM is prision mayor in any of its periods or
anywhere within its range.
Indeterminate penalty, when the crime committed is complex under Art. 48.
A was convicted of a complex crime of frustrated homicide with
assault upon an agent of a person in authority under Art.
249, in relation to Art. 6, Art. 148, and Art. 48 of the Revised Penal Code.
The penalty for homicide is reclusidn temporal.
Being frustrated, the penalty should be one degree lower
(Art. 50) or prisidn mayor. The penalty for assault is prisidn correccional in
its medium and maximum periods. Therefore, the penalty for the complex
crime is prisidn mayor, the penalty for the graver offense, the same to be
applied in its maximum period. The MAXIMUM of the indeterminate
penalty is prisidn mayor maximum and the MINIMUM is prisidn
correccional in its maximum period. (People vs. Dosal, 92 Phil. 877)
In Lontoc vs. People, 74 Phil. 513, 520, where the accused was
convicted of complex crime of estafa through falsification of a public
document (Art. 315, case No. 4, in connection with Arts. 171 and 48 of the
Code), and the penalty is prisidn mayor to be applied in its maximum period
plus a fine not to exceed f*5,000
(the penalty for falsification which is the graver offense), the MAXIMUM of
the indeterminate penalty is within the maximum period of prisidn mayor
and the MINIMUM is within that next lower in degree to prisidn mayor,
namely, prisidn correccional.
Indeterminate penalty, when the penalty is next lower by two degrees than that
prescribed by law for the crime threatened and there is one aggravating
circumstance.
A threatened to kill B if the latter would not give him a certain sum of
money. A failed to attain his purpose, because he was arrested by the police
upon complaint by B. Under Art.
780

282, No. 1, of the Revised Penal Code, the crime of grave threats, when
the offender did not attain his purpose, is punishable with a penalty next
lower by two degrees than that prescribed by law for the crime
threatened", which in this case is homicide. The penalty for homicide is
reclusidn temporal. In the execution of the crime concurred the generic
aggravating circumstances of relationship (Art. 15, R.P.C.) and that it
was committed with insult or in disregard of the respect due the
offended party on account of his rank or age (Art. 14, No. 3, R.P.C),
which shall be merged into one circumstance.
Held: The penalty imposable on A is prisidn correccional in its
maximum period or from 4 years, 2 months and 1 day to 6 years.
(People vs. Kho Choc, 50 O.G. 1667)
It will be noted that the penalty of reclusidn temporal, the penalty
for the crime threatened to be committed, is lowered first by two
degrees to determine the penalty for the crime of grave threats actually
committed by A, before fixing the latter penalty in its proper period.
The penalty of prisidn correccional was fixed in its maximum period,
because of the presence of one aggravating circumstance of relationship
or disregard of respect due the offended party.
Therefore, the maximum term of the indeterminate penalty is
prisidn correccional in its maximum period and the minimum term of
the indeterminate penalty is anywhere within the range of arresto
mayor, the penalty next lower from prisidn correccional.
7. Indeterminate penalty, when the accused is convicted of a complex crime
and there are two mitigating circumstances without any aggravating
circumstance. (Arts. 48, and 64, par. 5)
The crime committed is estafa thru falsification by a public
officer under No. 4, Art. 315, in connection with Art. 171, of the Revised
Penal Code. The penalty to be imposed is that which is provided for the
more serious offense to be applied in its maximum period, pursuant to
Art. 48, it being a complex crime. The penalty for the more serious
offense, which is falsification, is prisidn mayor in its full extent and fine.
There being two mitigating circumstances of (1) voluntary surrender
and (2) plea of guilty, without any aggravating circumstance, the
penalty next lower to that provided by law should be imposed. (Art. 64,
par. 5)
781
For purposes of the Indeterminate Sentence Law, the penalty next

lower should be determined without regard as to whether the basic
penalty provided by the Code should be applied in its maximum or
minimum period as circumstances modifying liability may require.
When however — and this may be the only exception to the rule —
the number of the mitigating circumstances is such as to entitle the
accused to the penalty next lower in degree, this penalty in the application
of the Indeterminate Sentence Law should be
the starting point for the determination of the penalty next lower in
degree (the MINIMUM of the indeterminate penalty).
For the purpose of determining the penalty next lower in degree,
the penalty that should be considered as the starting point is the whole
prisidn mayor, it being the penalty prescribed by law for the crime of
falsification (Art. 171), and not prisidn mayor in its maximum period
which happens to be the penalty, because the crime committed is
complex under Art. 48.
The penalty next lower from prisidn mayor is prisidn correccional
and this latter penalty should be applied in its maximum period, as the
MAXIMUM of the indeterminate penalty. The MINIMUM of the
indeterminate penalty is arresto mayor, the penalty next lower in degree,
which may be imposed by the court in any of its periods.
The penalty next lower in degree (the MINIMUM of the
indeterminate penalty) should be determined first, before imposing the
penalty prescribed by law for the offense in its proper period, because
Sec. 1 of the Indeterminate Sentence Law provides that the MINIMUM
of the indeterminate penalty "shall be within the range of the penalty
next lower to that prescribed by the Code for the offense."
Although the penalty prescribed by the Code for the offense is
prisidn mayor in its full extent, in this case, it should not be the starting
point for determining the MINIMUM, because there is a privileged
mitigating circumstance. This is the exception to the general rule.
The penalty next lower in degree should be the starting point for
determining the MINIMUM of the indeterminate penalty.
Thus — prision correccional will be the starting point. Arresto
mayor will be the penalty next lower. (People vs. Gonzalez, 73 Phil. 549,
552)
783
When the accused is guilty of a complex crime, the penalty

immediately lower is the next below the penalty provided for the gravest
crime. (People vs. Caburao, C.A., 54 O.G. 8261)
In the case of People vs. Fulgencio, 92 Phil. 1069, where the
accused, a minor 17 years old, committed two crimes of parricide
resulting from a single act of exploding a home-made bomb under the
house occupied by his grandparents, the Supreme Court held that since
the penalty for the crime committed is death (Art. 48), it being the
maximum of the penalty of reclusidn perpetua to death for parricide
(Art. 246), and there is a privileged mitigating circumstance of minority
(Art. 68), the penalty next lower is reclusion perpetua.
It will be noted that the penalty of reclusidn perpetua to death was

first applied in the maximum (death), the crime being complex, and then
lowered by one degree from the maximum.
This ruling does not follow the ruling in the case of People vs.
Gonzalez, supra, which requires that the penalty prescribed by the Code
for the offense be lowered first by one degree, because of the privileged
mitigating circumstance, and then the lower penalty to be applied in its
maximum period. Had this ruling in the Gonzalez case been followed, the
penalty imposed would have been prisidn mayor in any of its periods, as
the MINIMUM, to reclusidn temporal in its maximum period, as the
MAXIMUM. The penalty next lower from reclusidn perpetua to death is
reclusidn temporal. (Art. 61, par. 2) Reclusidn temporal is applied in its
maximum period, because the accused was found guilty of complex
crime.
The accused pleaded guilty to and was convicted of the crime of
direct assault upon a person in authority with homicide. This being a
complex crime, the penalty for the more serious crime should be
imposed, the same to be applied in its maximum period. (Art. 48,
Revised Penal Code) The more serious crime is homicide punishable by
reclusidn temporal.
The accused, who was 17 years, 9 months and 12 days old on the
date of the commission of the crime, has to his credit two mitigating
circumstances: the special or privileged mitigating circumstance of
minority (Art. 68, par. 2) and the ordinary mitigating circumstance of
plea of guilty. (Art. 13, par. 7) Therefore, under Art. 64, par. 5 (should
be Art. 68, par. 2) of the Revised Penal Code, the penalty imposable is
the penalty next lower to that prescribed by law. Under Article 71,
784
Revised Penal Code, the penalty next lower to reclusidn temporal is

prisidn mayor. Because of the complex nature of the crime committed by
the accused, the penalty of prisidn mayor is to be applied in its maximum
period. However, having in his favor the ordinary mitigating
circumstance of plea of guilty without any offsetting aggravating
circumstance, applying Art. 64, par. 2 of the Revised Penal Code, the
penalty of prisidn mayor maximum should be imposed in its minimum
range.
Parenthetically, We must state that the lower court erred in the
imposition of the correct penalty — despite its proper appreciation of
the privileged mitigating circumstance of minority and the ordinary
circumstance of plea of guilty in favor of the appellant — because it
applied first the imposable penalty to its maximum degree, i.e., reclusidn
temporal maximum, and then imposed the penalty immediately inferior
to it, i.e., reclusidn temporal medium. This latter penalty is imposed as
the maximum of the indeterminate sentence, but applied in the
minimum range because of the ordinary mitigating circumstance of plea
of guilty. As the minimum of the indeterminate sentence, it imposed the
minimum of the penalty next lower, i.e., reclusidn temporal minimum.
The proper method is to start from the penalty imposed by the
Revised Penal Code, i.e., reclusidn temporal; then apply the privileged
mitigating circumstance of minority and determine the penalty
immediately inferior in degree, i.e., prisidn mayor; and finally apply the
same in its maximum degree but within the minimum range thereof
because of the ordinary mitigating circumstance of plea of guilty.
Prisidn mayor being the maximum of the indeterminate sentence, the
minimum of the indeterminate penalty is within the range of the penalty
next lower to it as prescribed by the Revised Penal Code, i.e., prisidn
correccional. (People vs. Gonzalez, 73 Phil.
549, 551-552)
785
All told, and applying now the Indeterminate Sentence Law, the
accused should be sentenced to an indeterminate penalty of not less than
six(6) years of prisidn correccional, to not more than ten (10) years and
eight (8) months of prisidn mayor. (People vs. Cesar, G.R. No. L-26185,
March 13, 1968, 22 SCRA 1024, 1028)
8. Indeterminate sentence, when there are privileged mitigating and ordinary
mitigating circumstances. (Arts. 68 and 64)
When there is a privileged mitigating circumstance (such as,
minority or incomplete defense) and ordinary mitigating circumstance
(such as, plea of guilty or voluntary surrender to the authorities), the rule
is: lower first the penalty prescribed by the Code for the offense by one
degree (because of the privileged mitigating circumstance), using the scale
in Art. 71, and make the penalty next lower as the starting point for
determining the MINIMUM of the indeterminate penalty. Once the
MINIMUM is determined, by lowering by another degree, the penalty
next lower, the penalty which is made the starting point should be
imposed in the proper period. That penalty in the proper period will be
the MAXIMUM of the indeterminate penalty.
Problem:
A, a minor 15 years and 2 months old, was found guilty of
murder upon a plea of guilty. The court suspended the sentence and
ordered the commitment of the minor to the Training School for
Boys in the Welfareville in accordance with Article 80. Because he
became incorrigible in the Training School for Boys, A was
returned to the court for the imposition of the proper penalty. (Art.
68) The court imposed an indeterminate penalty of from five (5)
years of
prisidn correccional, as the MINIMUM, to ten (10) years and one (1)
day of prisidn mayor, as the MAXIMUM. Is this penalty correctly
imposed?
Yes. The penalty for murder is reclusidn temporal in its
maximum period to death. (Art. 248) The penalty next lower in
degree is prisidn mayor in its maximum period to reclusidn
temporal in its minimum and medium periods (Art. 61, par. 3),
computed as follows:
Death
786
} Penalty for murder
Reclusidn perpetua
Max.
Reclusidn temporal • | Med.Med. ^
(12 years and 1 day to Min. y One degree lower — MAXIMUM
20 years) of indeterminate sentence
e Max. Max.
Prisidn |
mayor Med. Med. ^
(6 years and 1 day to Min. > MINIMUM of indeterminate
12 years) sentence
Max.
Prisidn correccional { Med.
(6 months and 1 day Min.

to 6 years)
There being a mitigating circumstance of plea of guilty, without

any aggravating circumstance to offset it, the penalty one degree lower
(prisidn mayor in its maximum period to reclusidn temporal in its
minimum and medium periods) should be imposed in its minimum
period, which is prisidn mayor in its maximum period.
Prisidn mayor maximum has a duration of from ten (10) years and
one (1) day to twelve (12) years. Prisidn correccional in its maximum
period to prisidn mayor in its minimum and medium periods has a
duration of from four (4) years, two (2) months and one (1) day to ten
(10) years. Hence, the sentence imposed (from 5 years to 10 years and 1
day) by the court is within the limits of the penalty prescribed by law.
(See People vs. Ong Ta, 70 Phil. 553, 555; People vs. Cesar, supra)
9. Indeterminate penalty, when there are two privileged mitigating and
ordinary mitigating circumstances. (Arts. 68 and 69)
787
A, a minor under 18 years, killed B who was the unlawful

aggressor. A did not give sufficient provocation to B. But the means
employed by A to defend himself was not reasonable. After killing B, A
surrendered to the authorities.
Held: There are two privileged mitigating circumstances in this
case, namely: (1) minority under Art. 68, and (2) incomplete self-defense
under Art. 69. The penalty of reclusion temporal prescribed for homicide
should be lowered by two degrees or prision correccional, which should
be applied in the minimum period, in view of one ordinary mitigating
circumstance of voluntary surrender. The indeterminate penalty is not
less than 2 months and 21 days of arresto mayor and not more than 1
year, 1 month and 11 days of prision correccional. (People vs. Maula,
G.R. No. L-7191, Oct. 18, 1954, 96 Phil. 963 [Unrep.])
10. Indeterminate penalty, when there is incomplete defense, without any

ordinary mitigating or aggravating circumstance. (Art.
69)
A woman who stabbed and killed a man who had placed his
hand on her upper thigh, without any provocation on her part, was
given a reduced penalty by two degrees. (Art. 69) The penalty for
homicide is reclusidn temporal. Two degrees lower (Art. 61, in relation to
Art. 71) is prisidn correccional; and pursuant to the Indeterminate
Sentence Law, the indeterminate penalty is from arresto mayor in its
medium period, as the MINIMUM, to prisidn correccional in its medium
period, as the MAXIMUM. (People vs. Jaurigue, 76 Phil. 174, 183)
11. Indeterminate penalty, when there is incomplete defense with two ordinary
mitigating circumstances, and without any aggravating circumstance.
(Arts. 69 and 64, par. 5)
A killed B in incomplete self-defense. There was unlawful
aggression on the part of B and lack of sufficient provocation on the part
of A. But the means employed by A in defending himself was not
reasonable. A acted with obfuscation and, after killing B, surrendered
himself to the authorities. There was no aggravating circumstance.
Held: The penalty of reclusidn temporal for homicide should be
reduced by two degrees (Art. 69) and because of two ordinary
mitigating circumstances without any aggravating circumstance, the
reduced penalty should be further reduced by another degree or arresto
mayor in its medium period or 2
months and 1 day. (People vs. Nicolas, C.A., 50 O.G. 2133)
788
12. Indeterminate penalty, when the penalty prescribed by the Code is

reclusion temporal in its maximum period to death (penalty for murder)
and there are two or more mitigating circumstances and no aggravating
circumstance. (Art. 64, par. 5)
A committed murder, qualified by treachery, with the miti-
gating circumstances of voluntary plea of guilty and voluntary
surrender, and without any aggravating circumstance.
Held: Under Art. 64, No. 5 of the Revised Penal Code, the next
lower penalty should be imposed, that is, prision mayor in its maximum
period to reclusidn temporal in its medium period or from 10 years and 1
day to 17 years and 4 months. (People vs. Soriano, 70 Phil. 334)
The penalty for murder is reclusidn temporal in its maximum
period to death. (Art. 248) One degree lower is prisidn mayor in its
maximum period to reclusidn temporal in its medium period, in
accordance with Art. 61, No. 3, of the Code.
The penalty of prisidn mayor maximum to reclusidn temporal
medium should be subdivided into three periods, as follows:
Time included in Time included in Time included in

Time included in its minimum its medium its maximum
the entire penalty period period period
From 10 yrs., From 10 yrs., From 12 yrs., 5 From 14 yrs., 10

and 1 day to 17 and 1 day to 12 mos. and 11 days mos. and 21 days
yrs. and 4 mos. yrs., 5 mos. and to 14 yrs., 10 to 17 yrs. and 4
10 days. mos. and 20 mos.
days.
The penalty next lower, as the MAXIMUM of the indeterminate
penalty, is to be imposed in the medium period, because the two
mitigating circumstances are already considered in lowering the penalty
by one degree. It is not proper to consider any one or both of them again
in fixing the proper period of the penalty to be imposed. Therefore, as
regards the penalty next lower, there is neither mitigating nor
Hence, the MAXIMUM of the indeterminate penalty is the medium
period of prisidn mayor maximum to reclusidn temporal medium or 12
years, 5 months and 11 days to 14 years, 10 months and 20 days (at the
discretion of the court). The MINIMUM of the indeterminate penalty is
789
anywhere within the range of the penalty next lower or prision

correccional maximum to prisidn mayor medium. (Art. 61, par. 3)
13. Indeterminate penalty, when the crime committed is robbery in inhabited
house, and the penalty is to be lowered by one degree.
A pleaded guilty to the charge of robbery in an inhabited house
denned and penalized in Art. 299 of the Code. The penalty for robbery
in an inhabited house is reclusidn temporal. There being no allegation
that A was armed and it appearing that the value of the property taken
did not exceed P250, the penalty to be imposed is the minimum period of
the penalty next lower, that is, prisidn mayor in its minimum period.
That penalty is to be imposed in the medium period, there being no
aggravating or mitigating circumstance. The MINIMUM of the
indeterminate penalty is within the range of the penalty next lower in
degree from prisidn mayor in its full extent (disregard first the fact that
it shall be imposed in the minimum period). The MAXIMUM of the
indeterminate penalty is the medium period of prisidn mayor minimum
or 6 years, 8 months and 1 day to 7 years and
4 months. (People vs. De Lara, 98 Phil. 584, 586)
Not applicable when unfavorable to the accused.

A was convicted of illegal possession of grease guns and 2
Thompson sub-machine guns punishable by imprisonment from 5 years to 10
years. The trial court imposed a sentence that the accused should suffer
imprisonment of 5 years and 1 day. Is this penalty correct?
Yes, because in cases where the application of the law on indeterminate
sentence would be unfavorable to the accused, resulting in the lengthening of
his prison sentence, said law on indeterminate sentence should not be applied.
If we had no law on indeterminate sentence, considering the plea of guilty
entered by the appellant, the trial court could well and lawfully have given
him a prison sentence of five (5) years. If we are to apply the law, the prison
term would have to be more than five (5) years, as the minimum could not be
less than five years. (People vs. Nang Kay, 88 Phil. 515, 519)
The law on indeterminate sentence as a rule is intended to favor the
defendant in a criminal case particularly to shorten his term of imprisonment
depending upon his behavior, etc.
Indeterminate Sentence Law not applicable to the

following:
790
1. Persons convicted of offenses punished with death penalty or life

imprisonment.
2. Those convicted of treason, conspiracy or proposal to commit
treason.
3. Those convicted of misprision of treason, rebellion, sedition or
espionage.
4. Those convicted of piracy.
5. Those who are habitual delinquents.
6. Those who shall have escaped from confinement or evaded

sentence.
7. Those who violated the terms of conditional pardon granted to
them by the Chief Executive.
8. Those whose maximum term of imprisonment does not exceed
one year.
9. Those who, upon the approval of the law (December 5,

1933), had been sentenced by final judgment. (Sec. 2, Act No.
4103)
10. Those sentenced to the penalty of destierro or suspension.
"Persons convicted of offenses punished with death

penalty or life imprisonment."
The trial court did not err in convicting the appellant of simple rape
which is penalized with reclusidn perpetua. But it erred in giving him the
benefit of the Indeterminate Sentence Law. Article 63 of the Revised Penal
Code (not its Article 64[1], which was cited by the lower court), applies to the
case. (People vs. Amores, No. L-32996, Aug. 21, 1974, 58 SCRA 505, 510-511)
A is accused and convicted of murder punishable with the penalty of
reclusidn temporal in its maximum period to death. Two mitigating
circumstances of voluntary surrender and plea of guilty are to be considered
in favor of A. Is he entitled to an indeterminate penalty?
The Indeterminate Sentence Law uses the word "punished," not the
word "punishable." It would seem that it is the penalty actually imposed, not
the penalty that may be imposed, that should be considered.
791
In the case of People vs. Roque, 90 Phil. 142, 146, the accused, who was
17 years old and convicted of murder, was sentenced to an indeterminate
penalty of from 10 years and 1 day of prision mayor to 17 years, 4 months and
1 day of reclusion temporal.
In the case of People vs. Colman, 103 Phil. 6,19-20, the accused was also
17 years old and convicted of murder, but the provisions of the Indeterminate
Sentence Law were not applied because he was convicted of an offense
punished with death, although the penalty actually imposed was
imprisonment of 12 years and 1 day.
In imposing an indeterminate sentence upon the accused, the
Court hereby overrules the contrary doctrine in People vs. Colman, et al., 103
Phil. 6, Resolution of March 26, 1958, pp. 19-20, holding that the
Indeterminate Sentence Law (Act No. 4103, as amended by Act No. 4225) is
not applicable to a case similar to that of the accused.
The penalty actually imposed upon this accused not being death, he is entitled
to the benefits of the Indeterminate Sentence Law. (People vs. Moises, No. L-
32495, Aug. 13,1975, 66 SCRA 151,164; People vs. Cempron, G.R. No. 66324,
July 6, 1990, 187 SCRA 248, 256)
The Indeterminate Sentence Law is applicable to

recidivist.
While habitual delinquents are not entitled to an indeterminate
sentence, a recidivist for the first time may be given the benefits of the law.
(People vs. Yu Lian, C.A., 40 O.G. 4205; People vs. Venus, 63 Phil. 435, 442)
"Those who evaded the service of the sentence."

A was sentenced to destierro. While serving sentence, A entered the
prohibited area and committed robbery therein. Is A entitled to an
indeterminate sentence in case he is found guilty of robbery? No, because by
entering the prohibited area, he evaded the service of his sentence. The
Indeterminate Sentence Law is not applicable.
Defendant was found guilty of robbery. By his own admission,
appearing in his confession, Exhibit F, it appears that defendant is an escaped
prisoner. Held: He is not entitled to the benefits of the Indeterminate Sentence
Law. (People vs. Rivera, C.A., 44 O.G. 123)
"Those who shall have escaped from confinement."
792
A minor who escaped from the Philippine Training School for Boys
does not acquire the status of escaped prisoner as to be excluded from the
benefits bestowed by the Indeterminate Sentence Law, because his
confinement therein is not considered imprisonment. (People vs. Perez, C.A.,
44 O.G. 3884, citing People vs. Soler, 63 Phil. 868)
While there is evidence that prior to the incident in question the
appellant has had several brushes with the law, there is no showing that he has
been prosecuted and found guilty thereof. It appears that he was an escapee
from the National Mental Hospital. Later, the appellant was convicted of
homicide. Is he entitled to the benefits of the Indeterminate Sentence Law?
It is true, as provided in Section 2 thereof, that the Indeterminate
Sentence Law shall also not apply "to those who shall have escaped from
confinement or evaded sentence." However, we do not think that the
appellant's escape from the National Mental Hospital falls within the purview
of said provision. Confinement as a patient in the National Mental Hospital is
not imprisonment. By escaping from said hospital, the appellant did not
acquire the status of an escaped prisoner as to be excluded from the benefits
bestowed by the Indeterminate Sentence Law. (People vs. Co, C.A., 67 O.G.
7451)
Those whose maximum period of penalty does not

exceed one year.
The Indeterminate Sentence Law does not apply to non-divisible
penalties. It covers only divisible penalties and does not include indivisible
penalties. (People vs. Gonzales, 148 SCRA 649)
Application of the Indeterminate Sentence Law is mandatory where
imprisonment would exceed one year. (People vs. Lee, Jr., 132 SCRA 66)
A is convicted of a crime for which the penalty imposed is eight (8)

months of prision correccional. Is A entitled to an indeterminate penalty? No,
because the penalty imposed does not exceed one year. (People vs. Arellano, 68
Phil. 678, 683)
Indeterminate Sentence Law does not apply to

destierro.
In view of the nature of the penalty of destierro, the convict is not
entitled to the provisions of the Indeterminate Sentence Law, since the
benefits of the law are expressly granted to those who are sentenced to
imprisonment exceeding one year. (People vs. Almeda,
793
C.A.-G.R. No. 1583, June 8,1938)

This ruling applies to the penalty of suspension.
The application of the Indeterminate Sentence Law is

based on the penalty actually imposed.
Thus, if the accused was charged with the crime of acts of lasciviousness
punishable by prisidn correccional (Art. 336), the duration of which is from 6
months and 1 day to 6 years, and the court imposed upon him 6 months and 1
day, the minimum of prisidn correccional, the Indeterminate Sentence Law
does not apply, because the application of that law is based upon the penalty
actually imposed in the discretion of the court. (People vs. Dimalanta, 92 Phil.
239, 242; People vs. Moises, No. L-32495, Aug. 13,1975, 66 SCRA 151,163-164)
Purpose.
The purpose of the Indeterminate Sentence Law is "to uplift and
redeem valuable human material, and prevent unnecessary and excessive
deprivation of personal liberty and economic usefulness." (People vs. Ducosin,
59 Phil. 109,117)
The Indeterminate Sentence Law aims to individualize the
administration of our criminal law.
Factors to be taken into consideration by the court in

fixing the minimum penalty.
It is necessary to consider the criminal, first, as an individual and,
second, as a member of society.
Considering the criminal as an individual, some of the factors that
should be considered are: (1) his age, especially with reference to extreme
youth or old age; (2) his general health and physical conditions; (3) his
mentality, heredity and personal habits; (4) his previous conduct, environment
and mode of life (and criminal record, if any); (5) his previous education, both
intellectual and moral; (6) his proclivities and aptitudes for usefulness or
injury to society; (7) his demeanor during trial and his attitude with regard to
the crime committed; (8) the manner and circumstances in which the crime
was committed; (9) the gravity of the offense. (Note that Section 2 of Act No.
4103 excepts certain grave crimes — this should be kept in mind in assessing
the minimum penalties for analogous crimes.)
794
In considering the criminal as a member of society, his relationship,

first, toward his dependents, family and associates and their relationship with
him, and second, his relationship towards society at large and the State, are
important factors. The State is concerned not only in the imperative necessity
of protecting the social organization against the criminal acts of destructive
individuals but also in redeeming the individual for economic usefulness and
other social ends. In a word, the Indeterminate Sentence Law aims to
individualize the administration of our criminal law to a degree not heretofore
known in this country. With the foregoing principles in mind as guides, the
courts can give full effect to the beneficent intention of the Legislature. (People
vs. Ducosin, 59 Phil. 109,118)
Reason for fixing the MINIMUM and MAXIMUM penalties in

the indeterminate sentence.
1. Whenever any prisoner shall have served the minimum penalty imposed
on him, and it shall appear to the Board of Indeterminate Sentence that
such prisoner is fitted for release, said Board may authorize the release
of such prisoner on parole, upon such terms and conditions as may be
prescribed by the Board.
2. Whenever such prisoner released on parole shall, during the period of
surveillance, violate any of the conditions of his parole, the Board may
issue an order for his arrest. In such case, the prisoner so rearrested
shall serve the remaining unexpired portion of the maximum sentence.
(Sees. 5 and 8, Act No. 4103)
3. Even if a prisoner has already served the minimum, but he is not fitted
for release on parole, he shall continue to serve imprisonment until the
end of the maximum.
Mandatory.
It is mandatory in the cases specified therein, for it employs the phrases
"convicts shall be sentenced" and "the court shall sentence the accused to an
indeterminate sentence." (People vs. Yu Lian, C.A., 40 O.G. 4205)
795
PROBATION LAW
PRESIDENTIAL DECREE NO. 968,

AS AMENDED BY PRESIDENTIAL DECREE NO. 1257,
AND AS FURTHER AMENDED BY
BATAS PAMBANSA BLG. 76 AND
PRESIDENTIAL DECREE NO. 1990
ESTABLISHING A PROBATION SYSTEM, APPROPRIATING FUNDS

THEREFOR AND FOR OTHER PURPOSES.
SECTION 1. Title and Scope of the Decree. - This
Decree shall be known as the Probation Law of 1976. It shall apply to all
offenders except those entitled to the benefits under the provisions of
Presidential Decree Numbered Six Hundred and Three and similar laws.
SEC. 2. Purpose. — This Decree shall be interpreted so as to:
(a) Promote the correction and rehabilitation of an offender by
providing him with individualized treatment;
(b) Provide an opportunity for the reformation of a penitent
offender which might be less probable if he were to serve a prison sentence;
and
(c) Prevent the commission of offenses.
SEC. 3. Meaning of Terms. — As used in this Decree, the following
shall, unless the context otherwise requires, be construed thus:
(a) "Probation" is a disposition under which a defendant, after
conviction and sentence, is released subject to conditions imposed by the
court and to the supervision of a probation officer.
(b) "Probationer" means a person placed on probation.
(c) "Probation Officer" means one who investigates for the
court a referral for probation or supervises a probationer or both.
SEC. 4. Grant of Probation. — Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and sentenced a
defendant and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms and
conditions as it may deem best: Provided, That no application for
probation shall be entertained
PROBATION LAW
795
or granted if the defendant has perfected the appeal from the

Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver of the
right to appeal.
An order granting or denying probation shall not be appeal able. (As
amended by PD 1257 and by PD 1990, Oct. 5,1985)
The provisions of Section 4 of Presidential Decree No. 968, as above

amended, shall not apply to those who have already filed their respective
applications for probation at the time of the effectivity of this Decree. (Sec. 3
of PD 1990)
SEC. 5. Post-sentence Investigation. — No person shall be placed on
probation except upon prior investigation by the probation officer and a
determination by the court that the ends of justice and the best interest of the
public as well as that of the defendant will be served thereby.
SEC. 6. Form of Investigation Report. — The investigation report to be
submitted by the probation officer under Section 5 hereof shall be in the form
prescribed by the Probation Administrator and approved by the Secretary of
Justice.
SEC. 7. Period for Submission of Investigation Report.
— The probation officer shall submit to the court the investigation report on a
defendant not later than sixty days from receipt of the order of said court to
conduct the investigation. The court shall resolve the application for probation
not later than fifteen days after receipt of said report. (As amended by PD
1257, Dec. 1, 1977)
Pending submission of the investigation report and the resolution of the

petition, the defendant may be allowed on temporary liberty under his bail
filed in the criminal case: Provided, That in case where no bail was filed or
that the defendant is incapable of filing one, the court may allow the release of
the defendant on recognizance to the custody of a responsible member of the
community who shall guarantee his appearance whenever required by the
court.
SEC. 8. Criteria for Placing an Offender on Probation. — In
determining whether an offender may be placed on probation, the court shall
consider all information relative to the character, antecedents, environment,
797
PROBATION LAW
mental and physical condition of the offender, and available institutional and
community resources. Probation shall be denied if the court finds that:
(a) The offender is in need of correctional treatment that can be
provided most effectively by his commitment to an institution; or
(b) There is an undue risk that during the period of probation
the offender will commit another crime; or
(c) Probation will depreciate the seriousness of the offense
committed.
SEC. 9. Disqualified offenders. — The benefits of this Decree shall not
be extended to those:
(a) Sentenced to serve a maximum term of imprisonment of more
than six (6) years;
(b) Convicted of subversion or any crime against the national
security or the public order;
(c) Who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one month and one day
and/or a fine of not less than Two Hundred Pesos;
(d) Who have been once on probation under the provisions of
this Decree; and
(e) Who are already serving sentence at the time the substantive
provisions of this Decree became applicable pursuant to Section 33 hereof. (As
amended by BP Big. 76, and PD 1990, Oct. 5,1985)
SEC. 10. Conditions of Probation. — Every probation order issued by
the court shall contain conditions requiring that the probationer shall:
(a) present himself to the probation officer designated to
undertake his supervision at such place as may be specified in the order within
seventy-two hours from receipt of said order;
(b) report to the probation officer at least once a month at such
time and place as specified by said officer.
The court may also require the probationer to:
(a) cooperate with a program of supervision;
(b) meet his family responsibilities;
(c) devote himself to a specific employment and not to change
said employment without the prior written approval of the probation officer;
798
PROBATION LAW
(d) undergo medical, psychological or psychiatric examination

and treatment and enter and remain in a specified institution, when required
for that purpose;
(e) pursue a prescribed secular study or vocational training;
(f) attend or reside in a facility established for instruction,
recreation or residence of persons on probation;
(g) refrain from visiting houses of ill-repute;
(h) abstain from drinking intoxicating beverages to ex-
cess;
(i)permit the probation officer or an authorized social worker to visit his
home and place of work;
(j) reside at premises approved by it and not to change his
residence without its prior written approval; or
(k) satisfy any other condition related to the rehabilitation of the
defendant and not unduly restrictive of his liberty or incompatible with his
freedom of conscience.
SEC. 11. Effectivity of Probation Order. — A probation order shall take
effect upon its issuance, at which time the court shall inform the offender of
the consequences thereof and explain that upon his failure to comply with any
of the conditions prescribed in the said order or his commission of another
offense, he shall serve the penalty imposed for the offense under which he was
placed on probation.
SEC. 12. Modification of Conditions of Probation.
— During the period of probation, the court may, upon application of either
the probationer or the probation officer, revise or modify the conditions or
period of probation. The court shall notify either the probationer or the
probation officer of the filing of such an application so as to give both parties
an opportunity to be heard thereon.
The court shall inform in writing the probation officer and the
probationer of any change in the period or conditions of probation.
SEC. 13. Control and Supervision of Probationer. — The probationer
and his probation program shall be under the control of the court who placed
him on probation subject to actual supervision and visitation by a probation
officer.
Whenever a probationer is permitted to reside in a place under the
jurisdiction of another court, control over him shall be transferred to the
Executive Judge of the Court of First Instance of that place, and in such a
799
PROBATION LAW
case, a copy of the probation order, the investigation report and other
pertinent records shall be furnished said Executive Judge. Thereafter, the
Executive Judge to whom jurisdiction over the probationer is transferred shall
have the power with respect to him that was previously possessed by the court
which granted the probation.
SEC. 14. Period of Probation. —
(a) The period of probation of a defendant sentenced to a term of
imprisonment of not more than one year shall not exceed two years, and in all
other cases, said period shall not exceed six years.
(b) When the sentence imposes a fine only and the offender is
made to serve subsidiary imprisonment in case of insolvency, the period of
probation shall not be less than nor be more than twice the total number of
days of subsidiary imprisonment as computed at the rate established in Article
thirty-nine of the Revised Penal Code, as amended.
SEC. 15. Arrest of Probationer; Subsequent Dispositions. — At any time
during probation, the court may issue a warrant for the arrest of a
probationer for any serious violation of the conditions of probation. The
probationer, once arrested and detained, shall immediately be brought before
the court for a hearing of the violation charged. The defendant may be
admitted to bail pending such hearing. In such case, the provisions regarding
release on bail of persons charged with a crime shall be applicable to
probationers arrested under this provision.
In the hearing, which shall be summary in nature, the probationer shall
have the right to be informed of the violation charged and to adduce evidence
in his favor. The court shall not be bound by the technical rules of evidence
but may inform itself of all the facts which are material and relevant to
ascertain the veracity of the charge. The State shall be represented by a
prosecuting officer in any contested hearing. If the violation is established, the
court may revoke or continue his probation and modify the conditions thereof.
If revoked, the court shall order the probationer to serve the sentence
originally imposed. An order revoking the grant of probation or modifying the
terms and conditions thereof shall not be appealable. (As amended by PD
1257)
SEC. 16. Termination of Probation. — After the period of probation
and upon consideration of the report and recommendation of the probation
officer, the court may order the final
discharge of the probationer upon finding that he has fulfilled the terms and
conditions of his probation and thereupon, the case is deemed terminated.
The final discharge of the probationer shall operate to restore to him all
civil rights lost or suspended as a result of his conviction and to fully discharge
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PROBATION LAW
his liability for any fine imposed as to the offense for which probation was
granted.
The probationer and the probation officer shall each be furnished with a
copy of such order.
SEC. 17. Confidentiality of Records. — The investigation report and the
supervision history of a probationer obtained under this Decree shall be
privileged and shall not be disclosed directly or indirectly to anyone other
than the Probation Administration or the court concerned, except that the
court, in its discretion, may permit the probationer or his attorney to inspect
the aforementioned documents or parts thereof whenever the best interest of
the probationer makes such disclosure desirable or helpful: Provided, further,
That any government office or agency engaged in the correction or
rehabilitation of offenders may, if necessary, obtain copies of said documents
for its official use from the proper court or the Administration.
SEC. 18. The Probation Administration. — There is hereby created

under the Department of Justice an agency to be known as the Probation
Administration herein referred to as the Administration, which shall exercise
general supervision over all probationers.
The Administration shall have such staff, operating units and personnel
as may be necessary for the proper execution of its functions.
SEC. 19. Probation Administrator. — The Administration shall be
headed by the Probation Administrator, hereinafter referred to as the
Administrator, who shall be appointed by the President of the Philippines. He
shall hold office during good behavior and shall not be removed except for
cause.
The Administrator shall receive an annual salary of at least Forty
thousand pesos. His powers and duties shall be to:
(a) Act as the executive officer of the Administration;
(b) Exercise supervision and control over all probation
officers;
(c) Make annual reports to the Secretary of Justice, in such form
as the latter may prescribe, concerning the operation, administration and
improvement of the probation system;
(d) Promulgate, subject to the approval of the Secretary of
Justice, the necessary rules relative to the methods and procedures of the
probation process;
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(e) Recommend to the Secretary of Justice the appointment of

the subordinate personnel of his Administration and other offices established
in this Decree; and
(f) Generally, perform such duties and exercise such powers as
may be necessary or incidental to achieve the objectives of this Decree.
SEC. 20. Assistant Probation Administrator. — There shall be an
Assistant Probation Administrator who shall assist the Administrator and
perform such duties as may be assigned to him by the latter and as may be
provided by law. In the absence of the Administrator, he shall act as head of
the Administration.
He shall be appointed by the President of the Philippines and shall
receive an annual salary of at least Thirty-six thousand pesos.
SEC. 21. Qualifications of the Administrator and
Assistant Probation Administrator. — To be eligible for appointment as
Administrator or Assistant Probation Administrator, a person must be at least
thirty-five years of age, holder of a master's degree or its equivalent in either
criminology, social work, corrections, penology, psychology, sociology, public
administration, law, police science, police administration, or related fields,
and should have at least five years of supervisory experience, or be a member
of the Philippine Bar with at least seven years of supervisory experience.
SEC. 22. Regional Office; Regional Probation Officer.
— The Administration shall have regional offices organized in accordance
with the field service area pattern established under the Integrated
Reorganization Plan.
Such regional offices shall be headed by a Regional Probation Officer
who shall be appointed by the President of the Philippines in accordance with
the Integrated Reorganization Plan and upon the recommendation of the
Secretary of Justice.
The Regional Probation Officer shall exercise supervision and control
over all probation officers within his jurisdiction and such duties as may be
assigned to him by the Administrator. He shall have an annual salary of at
least Twenty-four thousand
pesos.
He shall, whenever necessary, be assisted by an Assistant Regional
Probation Officer who shall also be appointed by the President of the
Philippines, upon recommendation of the Secretary of Justice, with an annual
salary of at least Twenty thousand pesos.
SEC. 23. Provincial and City Probation Officers.
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PROBATION LAW
— There shall be at least one probation officer in each province and city who
shall be appointed by the Secretary of Justice upon recommendation of the
Administrator and in accordance with civil service law and rules.
The Provincial or City Probation Officer shall receive an annual salary
of at least Eighteen thousand four hundred pesos.
His duties shall be to:
(a) Investigate all persons referred to him for investigation by the
proper court or the Administrator;
(b) Instruct all probationers under his supervision or that of the
probation aide on the terms and conditions of their probation;
(c) Keep himself informed of the conduct and condition of
probationers under his charge and use all suitable methods to bring about an
improvement in their conduct and conditions;
(d) Maintain a detailed record of his work and submit such
written reports as may be required by the Administration or the court having
jurisdiction over the probationer under his supervision;
(e) Prepare a list of qualified residents of the province or city
where he is assigned who are willing to act as probation aides;
(f) Supervise the training of probation aides and oversee the
latter's supervision of probationers;
(g) Exercise supervision and control over all field assistants,
probation aides and other personnel; and
(h) Perform such duties as may be assigned by the court or the
Administration.
SEC. 24. Miscellaneous Powers of Provincial and City
Probation Officers. — Provincial or City Probation Officers shall have the
authority within their territorial jurisdiction to administer oaths and
acknowledgments and to take depositions in connection with their duties and
functions under this Decree. They shall also have, with respect to probationers
under their care, the powers of a police officer.
SEC. 25. Qualifications of Regional, Assistant Regional, Provincial, and
City Probation Officers. — No person shall be appointed Regional or
Assistant Regional or Provincial or City Probation Officer unless he possesses
at least a bachelor's degree with a major in social work, sociology, psychology,
criminology, penology, corrections, police science, police administration, or
related fields and has at least three years of experience in work requiring any
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PROBATION LAW
of the above-mentioned disciplines, or is a member of the Philippine Bar with

at least three years of supervisory experience.
Whenever practicable, the Provincial or City Probation
Officer shall be appointed from among qualified residents of the province or
city where he will be assigned to work.
SEC. 26. Organization. — Within twelve months from the approval of
this Decree, the Secretary of Justice shall organize the administrative
structure of the Administration and the other agencies created herein. During
said period, he shall also determine the staffing patterns of the regional,
provincial and city probation offices with the end in view of achieving
maximum efficiency and economy in the operations of the probation system.
SEC. 27. Field Assistants, Subordinate Personnel.
— Provincial or City Probation Officers shall be assisted by such field
assistants and subordinate personnel as may be necessary to enable them to
carry out their duties effectively.
SEC. 28. Probation Aides. — To assist the Provincial or City Probation
Officers in the supervision of probationers, the Probation Administrator may
appoint citizens of good repute and probity to act as probation aides.
Probation Aides shall not receive any regular compensation for services
except for reasonable travel allowance. They shall hold office for such period
as may be determined by the Probation Administrator. Their qualifications
and maximum case loads shall be provided in the rules promulgated pursuant
to this Decree.
SEC. 29. Violation of Confidential Nature of Probation
Records. — The penalty of imprisonment ranging from six
months and one day to six years and a fine ranging from six
hundred to six thousand pesos shall be imposed upon any person
who violates Section 17 hereof.
SEC. 30. Appropriations. — There is hereby authorized the
appropriation of the sum of Six Million Five Hundred Thousand
Pesos or so much as may be necessary, out of any funds in the
National Treasury not otherwise appropriated, to carry out the
purpose of this Decree. Thereafter, the amount of at least Ten
Million Five Hundred Thousand Pesos or so much as may be
necessary shall be included in the annual appropriations of the
national government.
SEC. 31. Repealing Clause. — All provisions of existing
laws, orders and regulations contrary to or inconsistent with this
Decree are hereby repealed or modified accordingly.
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PROBATION LAW
SEC. 32. Separability of Provisions. — If any part, section or

provision of this Decree shall be held invalid or unconstitutional,
no other parts, sections or provisions hereof, shall be affected
thereby.
SEC. 33. Effectivity. - This Decree shall take effect upon its
approval; Provided, however, That the application of its
substantive provisions concerning the grant of probation shall only
take effect on January 3, 1978. (As amended by PD 1257)
Done in the City of Manila, this 24th day of July in the year of
Our Lord, nineteen hundred and seventy-six.
(SGD.) FERDINAND E. MARCOS

President of the Philippines
Presidential Decree No. 1257, which amended Sections 4, 7,

15 and 33 of P.D. No. 968, took effect on December 1, 1977. Batas Pambansa
Big. 76, which amended Section 9 of P.D. No. 968, took effect on June 13, 1980.
P.D. No. 1990 which amended Sees. 4 and 9 of P.D. No. 968, took effect on
October 5, 1985.
Probation, defined.
Probation is a disposition under which a defendant, after conviction and
sentence, is released subject to conditions imposed by the court and to the
supervision of a probation officer.
Probation may be granted even if the sentence imposed a

fine only, but with subsidiary imprisonment.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine with subsidiary imprisonment in case of insolvency.
Upon application by defendant for probation, the court

may suspend the execution of the sentence.
Subject to the provisions of the Decree (No. 968), the court may, after it
shall have convicted and sentenced a defendant and upon his application
within the period for perfecting an appeal, suspend the execution of said
sentence and place the defendant on probation for such period and upon such
terms and conditions as it may deem best.
Time for filing application for probation; purpose and

effect.
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PROBATION LAW
What the law requires is that the application for probation must be filed
within the period for perfecting an appeal. The need to file it within such
period was intended to encourage offenders, who are willing to be reformed
and rehabilitated, to avail of probation at the first opportunity. Such provision
was never intended to suspend the period for the perfection of an appeal, and
the filing of the application for probation operates as a waiver of the right to
appeal. (Palo vs. Militante, G.R. No. 76100, April 18, 1990, 184 SCRA 395,
400)
In sharp contrast with Section 4 as amended by P.D. No. 1257, in its
present form, Section 4 establishes a much narrower period during which an
application for probation may be filed with the trial court: "after [the trial
court] shall have convicted and sentenced a defendant and — within the period
for perfecting an appeal." As if to provide emphasis, a new proviso was
appended to the first paragraph of Section 4 that expressly prohibits the grant
of an application for probation "if the defendant has perfected an appeal from
the judgment of conviction." It is worthy of note too that Section 4 in its
present form, i.e., as amended by P.D. No. 1990, has dropped the phrase which
said that the filing of an application for probation means "the automatic
withdrawal of a pending appeal." (Llamado vs. Court of
Appeals, G.R. No. 848, June 29, 1989, 174 SCRA 566, 574)
Note: The convict is not immediately placed on probation, for no
person shall be placed on probation except upon prior
investigation by the probation officer and a determination by
the court. (Sec. 5)
Where application for probation filed.

An application for probation shall be filed with the trial court.
Convict who filed an application for probation cannot

appeal.
The filing of the application for probation is a waiver of the right to
appeal.
Inappealability of resolution on application for probation.

An order granting or denying probation is not appealable.
Nature of order granting probation.

An order placing defendant on "probation" is not a "sentence" but is
rather in effect, a suspension of the imposition of sentence. It is not a final
judgment but is rather an "interlocutory judgment" in the nature of a
806
PROBATION LAW
conditional order placing the convicted defendant under the supervision of the
court for his reformation, to be followed by a final judgment of discharge, if
the conditions of the probation are complied with, or by a final judgment of
sentence if the conditions are violated. (Baclayon vs. Mutia, No. L-59298, April
30, 1984, 129 SCRA 148, 154)
Probation officer to submit the investigation report not

later than 60 days and the court to resolve the application
for probation not later than fifteen days after receipt of the
report.
The probation officer shall submit to the court the investigation report
on a defendant not later than sixty days from receipt of the order of said court
to conduct the investigation. The court shall resolve the application for
probation not later than fifteen days after receipt of said report.
Pending submission of report and resolution of the

petition, defendant may be released under his bail filed in
the criminal case.
Pending submission of the investigation report and the resolution of the
petition, the defendant may be allowed on temporary liberty under his bail
filed in the criminal case.
Defendant may be released on recognizance to the custody of a
responsible member of the community, (1) in case where no bail was filed, or
(2) in case where defendant is incapable of filing a bail.
The member of the community who takes custody of defendant on
recognizance guarantees only the latter's appearance whenever required by
the court.
Criteria for placing an offender on probation.

The court shall consider (1) all information relative to the —
(a) character,
(b) antecedents,
(c) environment,
(d) mental, and
(e) physical
807
PROBATION LAW
condition of the offender, and (2) available institutional and community

resources.
When probation shall be denied.

Probation shall be denied if the court finds that:
(a) the offender is in need of correctional treatment that can be
provided most effectively by his commitment to an institution; or
(b) there is an undue risk that during the period of probation, the
offender will commit another crime; or
(c) probation will depreciate the seriousness of the offense
committed.
The grant or denial of an application for probation does not rest solely
on the offender's potentiality to reform but also on the observance of
demands of justice and public interest. These are expressed in statutes
enacted by the lawmaker. (Amandy vs. People, No. L-76258,
May 23, 1988, 161 SCRA 436, 440, citing Tolentino vs. Alconcel, 121 SCRA 92)
Who are the offenders disqualified from being placed on

probation?
The benefits of the Decree shall not be extended to —
(a) those sentenced to serve a maximum term of imprisonment of
more than six years;
(b) those convicted of subversion or any crime against the national
security or public order;
(c) those who were previously convicted by final judgment of an
offense punished by imprisonment of not less than one month and
one day and I or a fine of not more than two hundred pesos;
(d) those who have been once on probation under the provisions of
the Decree; and
(e) those who are already serving sentence at the time the substantive
provisions of the Decree became applicable pursuant to Section 33
thereof.
Previous offense punished by imprisonment of not less

than 1 month and 1 day and/or a fine of not more than
f*200.
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PROBATION LAW
A was previously sentenced for an offense punished by 30 days

imprisonment and/or by a fine of f*100.00. A may be placed on probation, if
convicted of a new offense. But if A was previously sentenced to 1 month and 1
day imprisonment and/or to pay a fine of P200.00, he is disqualified from
being placed on probation if convicted of a new offense.
What are the conditions of probation?

Every probation order issued by the court shall contain conditions
requiring the probationer to:
(a) present himself to the probation officer designated to undertake
his supervision at such place as may be specified in the order
within 72 hours from receipt of the order;
(b) report to the probation officer at least once a month at such time
and place as specified by said officer.
The court may also require the probationer to do any of those
enumerated in sub-paragraphs (a) to (k) of Section 10 of the Decree.
The conditions which trial courts may impose on a probationer may be
classified into general or mandatory and special or discretionary. The
mandatory conditions, enumerated in Section 10 of the Probation Law,
require that the probationer should (a) present himself to the probation officer
designated to undertake his supervision at such place as may be specified in
the order within 72 hours from receipt of said order, and (b) report to the
probation officer at least once a month at such time and place as specified by
said officer. Special or discretionary conditions are those additional
conditions, listed in the same Section 10 of the Probation Law, which the
courts may additionally impose on the probationer towards his correction and
rehabilitation outside of prison. The enumeration, however, is not inclusive.
Probation statutes are liberal in character and enable courts to designate
practically any term it chooses as long as the probationer's constitutional
rights are not jeopardized. There are innumerable conditions which may be
relevant to the rehabilitation of the probationer when viewed in their specific
individual context. It should, however, be borne in mind that the special or
discretionary conditions of probation should be realistic, purposive and
geared to help the probationer develop into a law-abiding and self-respecting
individual. Conditions should be interpreted with flexibility in their
application and each case should be judged on its own merits — on the basis of
the problems, needs and capacity of the probationer. The very liberality of the
probation should not be made a tool by trial courts to stipulate instead
unrealistic terms. (Baclayon vs. Mutia, No. L-59298, April 30, 1984, 129 SCRA
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PROBATION LAW
148, 152-153; Salgado vs. Court of Appeals, G.R. No. 89606, Aug. 30, 1990, 189
SCRA 304,
311)
Example of condition that may not be imposed.

The court may not impose as a condition for the grant of probation that
the probationer should refrain from continuing her teaching
profession. (Baclayon vs. Mutia, supra)
Discretion of the court on probation.

Even if a convicted person falls within the classes of those qualified for
probation, the grant of probation is not automatic or ministerial. Probation is
a privilege and its grant rests upon the discretion of the court. The discretion
is exercised primarily for the benefit of society as a whole and only secondarily
for the personal advantage of the ac-
cused. (Amandy vs. People, No. L-76258, May 23,1988,161 SCRA 436,
443)
Effect of probation on accessory penalties.

Accessory penalties are deemed suspended once probation is granted.
(Baclayon vs. Mutia, supra, at 154)
What are the effects of violation of probation order?

Upon the failure of the probationer to comply with any of the conditions
prescribed in the order, or upon his commission of another offense, he shall
serve the penalty imposed for the offense under which he was placed on
probation.
For how long may a convict be placed on probation?

1. If the convict is sentenced to a term of imprisonment of not more
than one year, the period of probation shall not
exceed two years.
2. In all other cases, if he is sentenced to more than one year, said
period shall not exceed six years.
3. When the sentence imposes a fine only and the offender is made to
serve subsidiary imprisonment, the period of probation shall be
twice the total number of days of subsidiary imprisonment.
When may a probationer be arrested, and what is the

disposition once he is arrested?
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PROBATION LAW
At any time during probation, the court may issue a warrant for the
arrest of a probationer for any serious violation of the conditions of probation.
The probationer, once arrested and detained, shall immediately be brought
before the court for a hearing of the violation charged. The defendant may be
admitted to bail pending such hearing. In such a case, the provisions
regarding release on bail of persons charged with a crime shall be applicable
to probationers arrested under this provision.
In the hearing, which shall be summary in nature, the probationer shall
have the right to be informed of the violation charged and to adduce evidence
in his favor. The court shall not be bound by the technical rules of evidence
but may inform itself of all the facts which are material and relevant to
ascertain the veracity of the charge. The State shall be represented by a
prosecuting officer in any contested hearing. If the violation is established, the
court may revoke or continue his probation and modify the conditions thereof.
If revoked, the court shall order the probationer to serve the sentence
originally imposed. An order revoking the grant of probation or modifying the
terms and conditions thereof shall not be appealable. Notes:
1. The violation of the conditions of probation must be serious to
justify the issuance of a warrant of arrest.
2. The defendant may be admitted to bail pending hearing.

3. The hearing is summary in nature, but the probationer shall have
the right to be informed of the violation charged and to adduce
evidence in his favor.
4. Court is not bound by the technical rules of evidence.

5. If the violation is established, the court may revoke or continue his
probation and modify the conditions thereof.
6. If revoked, the court shall order the probationer to serve the
sentence originally imposed.
7. The order revoking the grant of probation or modifying the term
and conditions thereof is not appealable.
When and how probation is terminated, and what are the

effects of the termination?
After the period of probation and upon consideration of the report and
recommendation of the probation officer, the court may order the final
discharge of the probationer upon finding that he has fulfilled the terms and
conditions of his probation and thereupon the case is deemed terminated.
811
PROBATION LAW
The final discharge of the probationer shall operate to restore to him all
civil rights lost or suspended as a result of his conviction and to fully discharge
his liability for any fine imposed as to the offense for which probation was
granted.
The expiration of the probation period alone does not automatically
terminate probation. Probation is not coterminous with its period. There must
first be issued by the court, an order of final discharge based on the report
and recommendation of the probation officer. Only from such issuance can
the case of the probationer be deemed terminated. (Bala vs. Martinez, G.R.
No. 67301, Jan. 29, 1990, 181 SCRA 459, 465-466)
Purpose of the Decree establishing a probation system.

The three-fold purpose of the Decree is to —
(a) promote the correction and rehabilitation of an offender by
providing him with individualized treatment;
(b) provide an opportunity for the reformation of a penitent offender,
which might be less probable if he were to serve a prison sentence;
and
(c) prevent the commission of offenses.
Probation affects only the criminal aspect of the case.

Probation affects only the criminal aspect of the case. The suspension of
the sentence imposed on the accused who is granted probation has no bearing
on his civil liability. The court must hear the civil aspect. (Budlong vs.
Apalisok, No. L-60151, June 24, 1983, 122 SCRA 935, 942-943, 945)
Penalty on Moros and Non-Christians (Sec. 106,

Administrative Code of Mindanao and Sulu).
Sec. 106. Sentences upon Moros and Non-Christians. — In pronouncing
sentence upon a Moro or other non-Christian inhabitants of the Department
convicted of crime or misdemeanor, the judge or justice may ignore any
minimum penalty provided by law for the offense, and may impose such
penalty not in excess of the highest penalty provided by law, as, in his opinion,
after taking into consideration all the circumstances of the case, including the
state of enlightenment
812
PENALTY ON MOROS AND NON-CHRISTIANS
of the accused and the degree of moral turpitude which attaches to the offense
among his own people, will best subserve the interest of justice. The judge or
justice may also, in his discretion at any time before the expiration of the
period allowed for appeal, suspend the execution of any penalty or part
thereof so imposed, subject to such condition as he may prescribe.
The application of Section 106 of the Administrative Code

of Mindanao and Sulu is discretionary to the court.
In the imposition of penalty to non-Christian inhabitants, it is within the
discretion of the trial court to apply the special provision of Section 106 of the
Administrative Code of Mindanao and Sulu. (People vs. Pawin, 85 Phil. 528,
532)
Where the accused-appellant is a Mohammedan, inhabitant of
Mindanao, the penalty to be imposed upon him, regardless of the attending
circumstances, lies in the discretion of the trial court pursuant to Section 106
of the Administrative Code of Mindanao and Sulu. Ruling in People vs. Pawin,
supra, reiterated. (People vs. Disimban, 88 Phil. 120, 124)
In the Administrative Code of Mindanao and Sulu, the court is granted
discretion to impose the proper penalty taking into account the degree of
instruction of the Moros without following a fixed rule. The Igorots are in
worse condition than the Moros; the latter are
Mohammedans and the former Pagans; their culture in embryonic stage is
subject to their savage spirit. The lack of instruction among the Igorots should
be considered as a mitigating circumstance. (People vs. Cawol [Unrep.], 96
Phil. 972)
He cannot even invoke in his favor what Sec. 106 of the Administrative
Code of Mindanao and Sulu accords to a Moro who commits a crime and is
convicted, for even then, said section gives to the court ample discretion to
determine the penalty to be imposed considering the circumstances of the case,
the degree of his instruction, and the nature of the crime committed, the court
being justified in imposing the penalty which would best serve the interest of
justice. This is a case where the degree of perversity of the criminal warrants
not mercy but the enforcement of the law to the full extent. (People vs.
Salazar, 105 Phil. 1058, 1065)
813
Chapter Five
EXECUTION AND SERVICE OF PENALTIES
Section One. — General provisions
Art. 78. When and how a penalty is to be executed. — No penalty shall be

executed except by virtue of a final judgment.
A penalty shall not be executed in any other form than that prescribed
by law, nor with any other circumstances or incidents than those expressly
authorized thereby.
In addition to the provisions of the law, the special regulations
prescribed for the government of the institutions in which the penalties are to
be suffered shall be observed with regard to the character of the work to be
performed, the time of its performance, and other incidents connected
therewith, the relations of the convicts a m o n g themselves and other persons,
the relief w h i c h they m a y receive, and their diet.
The regulations shall make provision for the separation of the sexes in
different institutions, or at least into different departments, and also for the
correction and reform of the convicts.
Only penalty by final judgment can be executed.

Paragraph one of this Article provides that "no penalty shall be
executed except by virtue of a final judgment."
The judgment must be final before it can be executed, because the
accused may still appeal within 15 days from its promulgation. But if the
defendant has expressly waived in writing his right to appeal, the judgment
becomes final immediately. (Rule 120, Sec. 7,
Rules of Court)
If the judgment does not condemn the accused to suffer subsidiary
imprisonment in case of insolvency, the accused cannot be required
814
SUSPENSION OF EXECUTION OF PENALTIES Art. 79

DUE TO INSANITY
to suffer the same in case of inability to pay the fine imposed upon him.
(People vs. Jarumayan, 52 O.G. 249)
Art. 79. Suspension of the execution and service of the penalties in case of
insanity. — When a convict shall become insane or an imbecile after final
sentence has b e e n pronounced, the execution of said sentence shall be
suspended only with regard to the personal penalty, the provisions of the
second paragraph of circumstance number 1 of Article 12 being observed in
the corresponding cases.
If at any time the convict shall recover his reason, his sentence shall be
executed, unless the penalty shall have prescribed in accordance with the
provisions of this Code.
The respective provisions of this section shall also be observed if the
insanity or imbecility occurs while the convict is serving his sentence.
Rules regarding execution and service of penalties in case

of insanity.
1. When a convict becomes insane or imbecile after final sentence has
been pronounced, the execution of said sentence is suspended only
as regards the personal penalty.
2. If he recovers his reason, his sentence shall be executed, unless the
penalty has prescribed.
3. Even if while serving his sentence, the convict becomes insane or
imbecile, the above provisions shall be observed.
4. But the payment of his civil or pecuniary liabilities shall not be
suspended.
Only execution of personal penalty is suspended in case

of insanity; civil liability may be executed even in case of
insanity of convict.
After the judgment of conviction has become final, the accused becomes
insane. He has enough property to cover the civil liability.
815
Art. 80 SUSPENSION OF SENTENCE OF MINORS
Can the offended party ask for the execution of the judgment with respect to
civil liability?
Yes, because while the execution of the sentence is suspended as regards
the personal penalty, the payment of his civil or pecuniary
liability shall not be suspended.
An accused person may become insane:

1. At the time of the commission of the offense;
2. At the time of trial;
3. At the time of final judgment; or
4. While serving sentence.

If he was insane at the time of the commission of the offense, he is
exempt from criminal liability. (Art. 12, par. 1) If he was sane at the time of
the commission of the offense but subsequently becomes insane during the
trial of the case, in such a way that he cannot have a fair trial or make proper
defense even with the help of counsel (U.S. vs. Guendia, 37 Phil. 337, 345), the
court shall suspend proceedings and order his confinement in a hospital until
he recovers his reason. (Art. 12, par. 1) If his insanity should come after final
sentence or while serving his sentence, the execution thereof shall be
suspended with regard to the personal penalty only.
Art. 80. Suspension of sentence of minor delinquents. — Whenever a

minor of either sex, under sixteen years of age at the date of the commission of
a grave or less grave felony, is accused thereof, the court, after hearing the
evidence in the proper proceedings, instead of pronouncing judgment of
conviction, shall suspend all further proceedings and shall commit such minor
to the custody or care of a public or private, benevolent or charitable
institution, established under the law for the care, correction, or education of
orphaned, homeless, defective, and delinquent children, or to the custody or
care of any other responsible person in any other place subject to visitation
and supervision by the Director of Public Welfare or any of his agents or
representatives, if there be any, or otherwise by the superintendent of public
schools or his SUSPENSION OF SENTENCE OF MINORS Art. 80
816
representatives, subject to such conditions as are prescribed hereinbelow until
such minor shall have reached his majority or for such less period as the court
may deem proper. (As
amended by R.A. No. 47.)
The court, in committing said minor as provided above, shall take into
consideration the religion of such minor, his parents or next of kin, in order to
avoid his commitment to any private institution not under the control and
supervision of the religious sect or denomination to w h i c h they belong.
The Director of Public Welfare or his duly authorized representatives or
agents, the superintendent of public schools or his representatives, or the
person to whose custody or care the minor has been committed, shall submit
to the court every four months and as often as required in special cases, a
written report on the good or bad conduct of said minor and the moral and
intellectual progress made by him.
The suspension of the proceedings against a minor may be extended or
shortened by the court on the recommendation of the Director of Public
Welfare or his authorized representatives or agents, or the superintendent of
public schools or his representatives, according as to w h e t h e r the conduct
of such minor has been good or not and whether he has complied with the
conditions imposed upon him, or not. The provisions of the first paragraph of
this article shall not, however, be affected by those contained herein.
If the minor has been committed to the custody or care of any of the
institutions mentioned in the first paragraph of this article, with the approval
of the Director of Public Welfare and subject to such conditions as this official
in accordance with law may deem proper to impose, such minor may be
allowed to stay elsewhere under the care of a responsible person.
If the minor has behaved properly and has complied with the conditions
imposed upon him during his confinement, in accordance with the provisions
of this article, he shall be returned to the court in order that the same may
order his final release.
In case the minor fails to behave properly or to comply with the
regulations of the institution to which he has been committed or with the
conditions imposed upon him w h e n he was committed to the care of a
responsible person, or in case he should be found incorrigible or his continued
stay in such institution should be inadvisable, he shall be returned to the court
in order that the same may render the judgment corresponding to the crime
committed by him.
The expenses for the maintenance of a minor delinquent confined in the
institution to which he has been committed, shall be borne totally or partially
by his parents or relatives or those persons liable to support him, if they are
817
YOUTHFUL OFFENDER UNDER THE CHILD
AND YOUTH WELFARE CODE AND JUVENILE
JUSTICE AND WELFARE ACT OF 2006
able to do so, in the discretion of the court: Provided, That in case his parents
or relatives or those persons liable to support him have not been ordered to
pay said expenses, the municipality in which the offense was committed shall
pay one-third of said expenses; the province to which the municipality belongs
shall pay one-third; and the remaining one-third shall be borne by the
National Government: Provided, however, That w h e n e v e r the Secretary of
Finance certifies that a municipality is not able to pay its share in the expenses
above mentioned, such share w h i c h is not paid by said municipality shall be
borne
by the National Government. Chartered cities shall pay twothirds of said
expenses; and in case a chartered city cannot pay said expenses, the internal
revenue allotments which may be due to said city shall be withheld and
applied in settlement of said indebtedness in accordance with section five
hundred and eighty-eight of the Administrative Code. (As amended by Com.
Act No. 99 and Rep. Act No. 47)
The provisions of Article 80 of the Revised Penal Code

have been repealed by Chapter Three of P.D. No. 603, as
amended
(The Child and Youth Welfare Code), and by the
provisions of Rep. Act No. 9344 (Juvenile Justice and
Welfare Act of 2006).
Child in Conflict with the Law.
Under Sec. 4 of Rep. Act No. 9344, a "Child" is denned as "a person
under eighteen (18) years" while a "Child In Conflict with the Law" refers to
"a child who is alleged as, accused of, or adjudged as, having committed an
offense under Philippine laws."
818
Under P.D. No. 603, a youthful offender is a "child, minor or youth,
including one who is emancipated in accordance with law, who is over nine
years but under eighteen years of age at the time of the commission of the
offense.'' (Art. 189, par.l)
Rep. Act No. 9344 repealed P.D. No. 603 on the matter although both
cover children who are under 18 years of age.
Minimum Age of Criminal Responsibility.
A child fifteen (15) years of age or under at the time of the commission
of the offense shall be exempt from criminal liability. However, the child shall
be subjected to an intervention program pursuant to Section 20 of this Act.
A child above fifteen (15) years but below eighteen (18) years of age
shall likewise be exempt from criminal liability and be subjected to an
intervention program, unless he/she has acted with discernment, in which
case, such child shall be subjected to the appropriate proceedings in
accordance with this Act.
The exemption from criminal liability herein established does not
include exemption from civil liability, which shall be enforced in accordance
with existing laws. (Sec. 6, Rep. Act No. 9344) Intervention Program.
If it has been determined that the child taken into custody is fifteen (15)
years old or below, the authority which will have an initial contact with the
child has the duty to immediately release the child to the custody of his/her
parents or guardian, or in the absence thereof, the child's nearest relative.
Said authority shall give notice to the local social welfare and
development officer who will determine the appropriate programs in
consultation with the child and to the person having custody over the child. If
the parents, guardians or nearest relatives cannot be located, or if they refuse
to take custody, the child may be released to any of the following: a duly
registered nongovernmental or religious organization; a barangay official or a
member of the Barangay Council for the Protection of Children-(BCPC); a
local social welfare and development officer; or, when and where appropriate,
the DSWD.
If the child referred to herein has been found by the Local Social
Welfare and Development Office to be abandoned, neglected or abused by his
parents, or in the event that the parents will not comply with the prevention
program, the proper petition for involuntary commitment shall be filed by
the DSWD or the Local Social Welfare and Development Office pursuant to
819
Presidential Decree No. 603, otherwise known as "The Child and Youth
Welfare Code." (Sec. 20, Rep. Act No. 9344)
Diversion Programs for children over 15 and under 18 who

acted with discernment. (Refer to Par. 2, Art. 13)
Automatic suspension of sentence under Rep. Act No.
9344.
Once the child who is under eighteen (18) years of age at the time of the
commission of the offense is found guilty of the offense charged, the court
shall determine and ascertain any civil liability which may have resulted from
the offense committed. However, instead of pronouncing the judgment of
conviction, the court shall place the child in conflict with the law under
suspended sentence, without need of application: Provided, however, That
suspension of sentence shall be applied even if the juvenile is already eighteen
(18) years of age or more at the time of the pronouncement of his/her guilt.
(See Sec. 38, Rep. Act No. 9344)
Compared to P.D. No. 603.

1) Minimum Age of Criminal Responsibility
Under P.D. No. 603, a child nine (9) years of age or under at
the time of the commission of the offense, and a child over nine (9)
years and under fifteen (15) years of age unless he acted with
discernment, shall be exempt from criminal liability (Sec. 189,
P.D. No. 603) Under Rep. Act No. 9344, a child under fifteen (15)
years of age, shall be exempt from criminal liability, regardless of
whether or not he/she acted with discernment.
2) Discernment
If a child over nine (9) years and under fifteen (15) years of
age acted with discernment, the court shall hear the evidence in
the proper proceedings and if it finds the youthful offender to have
committed the acts charged against him, the court shall determine
the imposable penalty, including any civil liability chargeable
against him. However, instead of pronouncing judgment of
conviction, the court, upon application of the youthful offender
and it if finds that the best interest of the public as well as that of
the offender will be served thereby, may suspend all further
proceedings and shall commit such minor to the custody or care of
820
the DSWD or to any training institution operated by the
government, or duly licensed agencies or any other responsible
person, until he shall have reached twenty-one years of age or, for
a shorter period as the court may deem proper. (Sec. 189 and 192,
P.D. No. 603) Under Rep. Act No. 9344, a child above fifteen (15)
years but below eighteen (18) years of age who acted with
discernment shall be subjected to the appropriate proceedings in
accordance with the Act.
3) Suspension of Sentence
Under P.D. No. 603, there is no automatic suspension of
sentence. The youthful offender should apply for a suspended
sentence and it is discretionary on the court to approve the
application. The order of the court denying an application for
suspension of sentence shall not be appealable. (Sec. 193, P.D. No.
603) Under Rep. Act No. 9344, suspension of sentence is automatic.
COURT PROCEEDINGS.
Bail.
For purpose of recommending the amount of bail, the privileged
mitigating circumstance of minority shall be considered. (Sec. 34, Rep. Act No.
9344)
Release on Recognizance.
Where a child is detained, the court shall order:
(a) the release of the minor on recognizance to his/her parents and
other suitable persons;
(b) the release of the child in conflict with the law on bail; or
(c) the transfer of the minor to a youth detention home/youth
rehabilitation center.
The court shall not order the detention of a child in a jail pending trial
or hearing of his/her case. (Sec. 35, Rep. Act No. 9344)
Detention of the Child Pending Trial.

Children detained pending trial may be released on ball or
recognizance. In all other cases and whenever possible, detention pending trial
821
may be replaced by alternative measures, such as close supervision, intensive
care or placement with a family or in an edu-
cation setting or home. Institutionalization or detention of the child pending
trial shall be used only as a measure of last resort and for
the shortest possible period of time.
Whenever detention is necessary, a child will always be detained in
youth detention homes established by local governments, pursuant to Section
8 of the Family Courts Act, in the city or municipality where the child resides.
In the absence of a youth detention home, the child in conflict with the
law may be committed to the care of the DSWD or a local rehabilitation center
recognized by the government in the province, city or municipality within the
jurisdiction of the court. The center or agency concerned shall be responsible
for the child's appearance in court whenever required. (Sec. 36, Rep. Act No.
9344)
Diversion Measures.
Where the maximum penalty imposed by law for the offense with which
the child in conflict with the law is charged is imprisonment of not more than
twelve (12) years, regardless of the fine or fine alone regardless of the amount,
and before arraignment of the child in conflict with the law, the court shall
determine whether or not diversion is appropriate. (Sec. 37, Rep. Act No.
9344)
Discharge of the Child in Conflict with the Law.

Upon the recommendation of the social worker who has custody of the
child, the court shall dismiss the case against the child whose sentence has
been suspended and against whom disposition measures have been issued, and
shall order the final discharge of the child if it finds that the objective of the
disposition measures have been fulfilled.
The discharge of the child in conflict with the law shall not affect the civil
liability resulting from the commission of the offense, which shall be enforced
in accordance with law. (Sec. 39, Rep. Act No. 9344)
Return of the Child in Conflict with the Law to Court.

If the court finds that the objective of the disposition measures imposed
upon the child in conflict with the law have not been fulfilled, or if the child in
conflict with the law has willfully failed to comply with the conditions of
822
his/her disposition or rehabilitation program, the child in conflict with the law
shall be brought before the court for execution of judgment.
If said child in conflict with the law has reached eighteen (18) years of
age while under suspended sentence, the court shall determine whether to
discharge the child in accordance with this Act, to order execution of sentence,
or to extend the suspended sentence for a certain specified period or until the
child reaches the maximum age of twenty-one (21) years. (Sec. 40, Rep. Act
No. 9344)
Credit in Service of Sentence.

The child in conflict with the law shall be credited in the service of
his/her sentence with the full time spent in actual commitment and detention
under this Act. (Sec. 41, Rep. Act No. 9344)
Probation as an Alternative to Imprisonment.

The court may, after it shall have convicted and sentenced a child in
conflict with the law, and upon application at any time, place the child, or
probation in lieu of service of his/her sentence taking into account the best
interest of the child. For this purpose, Section
4 of Presidential Decree No. 968, otherwise known as the "Probation Law of
1976," is hereby amended accordingly. (Sec. 42, Rep. Act No.
9344)
REHABILITATION AND REINTEGRATION.

Objective of Rehabilitation and Reintegration.
The objective of rehabilitation and reintegration of children in conflict
with the law is to provide them with interventions, approaches and strategies
that will enable them to improve their social functioning with the end goal of
reintegration to their families and as productive members of their
communities. (Sec. 44, Rep. Act No. 9344)
Court Order Required.

No child shall be received in any rehabilitation or training facility
without a valid order issued by the court after a hearing for the purpose. The
details of this order shall be immediately entered in a register exclusively for
children in conflict with the law. No child shall be admitted in any facility
where there is no such register. (Sec. 45, Rep. Act No. 9344)
823
Separate Facilities from Adults.
In all rehabilitation or training facilities, it shall be mandatory that
children shall be separated from adults unless they are members of the same
family. Under no other circumstance shall a child in conflict with the law be
placed in the same confinement as adults.
The rehabilitation, training or confinement area of children in conflict
with the law shall provide a home environment where children in conflict with
the law can be provided with quality counseling and treatment. (Sec. 46, Rep.
Act No. 9344)
Female Children.
Female children in conflict with the law placed in an institution shall be
given special attention as to their personal needs and problems. They shall be
handled by female doctors, correction officers and social workers, and shall be
accommodated separately from male children in conflict with the law. (Sec.
47, Rep. Act No. 9344)
Care and Maintenance of the Child in Conflict with the

Law.
The expenses for the care and maintenance of a child in conflict with the
law under institutional care shall be borne by his/her parents or those persons
liable to support him/her: Provided, That in case his/her parents or those
persons liable to support him/her cannot pay all or part of said expenses, the
municipality where the offense was committed shall pay one-third (1/3) of said
expenses or part thereof; the province to which the municipality belongs shall
pay one-third (1/3) and the remaining one-third (1/3) shall be borne by the
national government. Chartered cities shall pay two-thirds (2/3) of said
expenses; and in case a chartered city cannot pay said expenses, part of the
internal revenue allotments applicable to the unpaid portion shall be withheld
and applied to the settlement of said obligations: Provided, further, That in the
event that the child in conflict with the law is not a resident of the
municipality/city where the offense was committed, the court, upon its
determination, may require the city/municipality where the child in conflict
with the law resides to shoulder the cost.
Confinement of Convicted Children in Agricultural Camps

and other Training Facilities.
824
A child in conflict with the law may, after conviction and upon order of
the court, be made to serve his/her sentence, in lieu of confinement in a
regular penal institution, in an agricultural camp and other training facilities
that may be established, maintained, supervised and controlled by the Bureau
of Corrections, in coordination with the Department of Social Welfare and
Development. (Sec. 51, Rep. Act No. 9344)
Rehabilitation of Children in Conflict with the Law.

Children in conflict with the law, whose sentences are suspended may,
upon order of the court, undergo any or a combination of disposition
measures best suited to the rehabilitation and welfare of the child as provided
in the Supreme Court Rule on Juveniles in Conflict with the Law.
If the community-based rehabilitation is availed of by a child in conflict
with the law, he/she shall be released to parents, guardians, relatives or any
other responsible person in the community. Under the supervision and
guidance of the local social welfare and development officer, and in
coordination with his/her parents/guardian, the child in conflict with the law
shall participate in community-based programs, x x x .
In accordance therewith, the family of the child in conflict with the law
shall endeavor to actively participate in the community-based rehabilitation.
Based on the progress of the youth in the community, a final report will
be forwarded by the local social welfare and development
officer to the court for final disposition of the case.
If the community-based programs are provided as diversion measures
under Chapter II, Title V, the programs enumerated above shall be made
available to the child in conflict with the law. (Sec. 52, Rep. Act No. 9344)
Youth Rehabilitation Center.

The youth rehabilitation center shall provide 24-hour group care,
treatment and rehabilitation services under the guidance of a trained staff
where residents are cared for under a structured
therapeutic environment with the end view of reintegrating them in their
families and communities as socially functioning individuals. A quarterly
report shall be submitted by the center to the proper court on the progress of
the children in conflict with the law. Based on the progress of the youth in the
center, a final report will be forwarded to the court for final disposition of the
825
case. The DSWD shall establish youth rehabilitation centers in each region of
the country. (Sec. 53, Rep. Act No. 9344)
Civil Liability of Youthful Offenders.

The civil liability for acts committed by a youthful offender shall
devolve upon the offender's father and, in case of his death or incapacity,
upon the mother, or in case of her death or incapacity, upon the guardian.
Civil liability may also be voluntarily assumed by a relative or family friend of
the youthful offender. (Art. 201, P.D. No. 603)
Liability of Parents or Guardian or Any Person in the

Commission of Delinquent Acts by Their Children or
Wards.
A person whether the parent or guardian of the child or not, who
knowingly or willfully,
(1) Aids, causes, abets or connives with the commission by a child of a
delinquency, or
(2) Does any act producing, promoting, or contributing to a child's
being or becoming a juvenile delinquent, shall be
826
HOW DEATH PENALTY IS EXECUTED
Art. 81
punished by a fine not exceeding five hundred pesos or to

imprisonment for a period not exceeding two years, or both such
fine and imprisonment, at the discretion of the court.
(Art. 204, P.D. No. 603)
Confidentiality of Records and Proceedings

All records and proceedings involving children in conflict with the law
from initial contact until final disposition of the case shall be considered
privileged and confidential. The public shall be excluded during the
proceedings and the records shall not be disclosed directly or indirectly to
anyone by any of the parties or the participants in the proceedings for any
purpose whatsoever, except to determine if the child in conflict with the law
may have his/her sentence suspended or if he/she may be granted probation
under the Probation Law, or to enforce the civil liability imposed in the
criminal action.
The component authorities shall undertake all measures to protect this
confidentiality of proceedings, including non-disclosure of records to the
media, maintaining a separate police blotter for cases involving children in
conflict with the law and adopting a system of coding to conceal material
information which will lead to the child's identity. Records of a child in
conflict with the law shall not be used in subsequent proceedings for cases
involving the same offender as an adult, except when beneficial for the
offender and upon his/her written consent.
A person who has been in conflict with the law as a child shall not be
held under any provision of law, to be guilty of perjury or of concealment or
misrepresentation by reason of his/her failure to acknowledge the case or
recite any fact related thereto in response to any inquiry made to him/her for
any purpose. (Sec. 43, Rep. Act No. 9344)
P.D. No. 1179, amending P.D. No. 603 by providing that Article
192 shall not apply to those convicted of an offense punishable by death or life
imprisonment (reclusidn perpetua) took effect in 1977,
after the decision of the Court of First Instance.
Section Two. — Execution of principal penalties
Art. 81. When and how the death penalty is to be executed. — The death
sentence shall be executed with preference to Art. 81
827
any other penalty and shall consist in putting the person under sentence to
death by lethal injection. The death sentence shall be executed under the
authority of the Director of the Bureau of Corrections, endeavoring so far as
possible to
mitigate the sufferings of the person under sentence during the lethal
injection as well as during the proceedings prior to the execution.
The Director of the Bureau of Corrections shall take steps to ensure that
the lethal injection to be administered is sufficient to cause the instantaneous
death of the convict.
Pursuant to this, all personnel involved in the administration of lethal
injection shall be trained prior to the performance of such task.
The authorized physician of the Bureau of Corrections, after thorough
examination, shall officially make a pronouncement of the convict's death and
shall certify thereto in the records of the Bureau of Corrections.
The death sentence shall be carried out not earlier than one (1) year nor
later than eighteen (18) months after the judgment has become final and
executory without prejudice to the exercise by the President of his executive
clemency powers at all times. (As amended by Republic Act No. 7659 and
Rep. Act No. 9346 expressly repealed Rep. Act No. 8177
which prescribed death by lethal injection.
Section 1 of Rep. Act No. 9346 provides as follows:
"SECTION 1. The imposition of the penalty of death is hereby
prohibited. Accordingly, Republic Act No. Eight Thousand One
Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act
Designating Death by Lethal Injection, is hereby repealed. Republic Act
No. Seven Thousand Six Hundred FiftyNine (R.A. No. 7659), otherwise
known as the Death Penalty Law, and all other laws, executive orders
and decrees, insofar as they impose the death penalty are hereby
repealed or amended accordingly."
Art. 82
In view of the enactment of Rep. Act No. 9346, the death

penalty may not be imposed. Thus, Arts. 81 to 85 of the
Revised Penal Code have no application.
828
Death sentence shall be executed with preference to any
other penalty.
According to Art. 81, the death sentence shall be executed with
preference to any other penalty. This is in accordance with Art. 70 providing
for successive service of sentences. Death penalty is No. 1
in the order of the severity of the penalties listed there.
Death sentence is executed by lethal injection.

Under Republic Act No. 8177 which was approved on March 20, 1996,
the death sentence shall be executed by means of lethal injection. Prior to the
enactment of R.A. No. 8177, the death sentence was executed by electrocution.
When death sentence shall be carried out.

The death sentence shall be carried out not earlier than 1 year nor later
than 18 months after the judgment becomes final and executory, without
prejudice to the exercise by the President of his executive clemency powers.
Art. 82. Notification and execution of the sentence and assistance to the
culprit. — The court shall designate a working day for the execution, but not
the hour thereof; and such designation shall not be communicated to the
offender before sunrise of said day, and the execution shall not take place until
after the expiration of at least eight hours following the notification, but before
sunset. During the interval between the notification and the execution, the
culprit shall, insofar as possible, be furnished such assistance as he may
request in order to be attended in his last moments by priests or ministers of
the religion he professes and to consult lawyers, as well as in order to make a
will and confer with members of his family or person in charge of the
management of his business, of the administration of his property, or of the
care of his descendants.
829
SUSPENSION OF DEATH SENTENCE
Art. 83
A convict sentenced to death may make a will.

Such convict shall have the right to consult a lawyer and to make a will
for the disposition of his property.
May a convict sentenced to death dispose of his property

by an act or conveyance inter vivos?
According to Art. 40, one of the accessory penalties of death is civil
interdiction. According to Art. 34, civil interdiction shall deprive the offender
of the right to dispose of his property by any act or conveyance inter vivos. But
Art. 40 specifically provides that civil interdiction is its accessory penalty only
when the death penalty is not executed by reason of commutation or pardon.
Problem:
A had been sentenced to death which was affirmed by the Supreme
Court. After he was notified of the date of execution, A asked for his friend B
and by means of a deed of donation inter vivos, transferred all his property to
him who accepted the donation. If A had no forced heirs, is the transfer valid?
It seems that the transfer is valid, because if A was put to death
subsequently, he was not suffering civil interdiction at the time he executed
the deed of donation inter vivos.
Complication may arise if A was not executed by reason of commutation
or pardon, for in that case, he would suffer civil interdiction. A question may
be asked whether the deed of donation inter vivos could still be considered
valid.
Art. 83. Suspension of the execution of the death sentence. — The death
sentence shall not be inflicted u p o n a w o m a n within one (1) year after
delivery, nor upon any person over seventy years of age. In this last case, the
death sentence shall be commuted to the penalty of reclusion perpetua with the
accessory penalties provided in Article 40.
In all cases where the death sentence has become final, the records of
the case shall be forwarded immediately by the Supreme Court to the Office
of the President for possible Art. 83
830
exercise of the pardoning power. (As Amended by Republic Act No. 7659)
Death sentence shall be suspended when the accused is a

—
(1) Woman, while pregnant;
(2) Woman, within one year after delivery;
(3) Person over 70 years of age.

The suspension of the execution of the death sentence as
regards a person over 70 years old is necessary to give the
President time to act, because only the President can commute the
sentence.
The accused was fifty-six years old when he testified in 1962.
An agent of the National Bureau of Investigation reported that in
1972, he was already seventy years old. The death penalty cannot
be imposed upon any person over seventy years of age. It should be
commuted to reclusion perpetua with the accessory penalties
provided in Article
40. (People vs. Yu, No. L-29667, Nov. 29, 1977, 80 SCRA
382,395)
The appellant was found guilty of the complex crime of
murder with frustrated murder with the aggravating
circumstances of evident premeditation, craft and dwelling and
was sentenced to death. However, since he was already more than
70 years old, the penalty of reclusidn perpetua was imposed.
(People vs. Miraflores, Nos. L-32144-45, July 30, 1982, 115 SCRA
570, 593-594; People vs. Del Mundo, No. L-39051, June 29, 1982,
114 SCRA 719, 724)
(4) Convict who becomes insane after final sentence of death has been
pronounced. (See Art. 79)
But when he recovers his reason and before the penalty has
prescribed, he may be put to death.
Distinguish Art. 83 from Art. 47.

Art. 47 provides for cases in which death penalty is not to be imposed.
They are:
Art. 83
831
1. When the guilty person is more than 70 years of age;
2. When upon appeal or automatic review of the case by the
Supreme Court, the required majority vote is not obtained for
imposing the death penalty; and
3. When the convict is a minor under 18 years of age.
Note: This No. 3 may be added in view of Art. 68.
On the other hand, Art. 83 provides for suspension only of the execution
of death sentence.
Regional Trial Court (formerly CFI) can suspend execution

of death sentence.
The Regional Trial Court which imposes death penalty has the power to
suspend temporarily the execution of the sentence, after the judgment has
become final, and after the date has been fixed for execution, upon petition on
behalf of the prisoner, based upon grounds arising after judgment has become
final, the adjudication of which does not challenge the validity of the judgment
or involve a review or reconsideration of the proceedings.
Among such grounds are the alleged (1) insanity or pregnancy of the
convict, (2) the alleged nonidentity of the prisoner with the person actually
convicted and sentenced, (3) the alleged lack of a suitable opportunity to be
heard on an application for executive clemency, and the like. (Director of
Prisons vs. Judge of First Instance of Cavite, 29
Phil. 265, 271-274)
But the court cannot grant indefinite, permanent or conditional
suspension of the execution of sentences pronounced in criminal cases.
Execution of death sentence after delivery of pregnant

woman.
Under the old Code, the death sentence could be executed only after the
lapse of 40 days from delivery.
Under R.A. No. 7659, the execution of the death sentence upon a
pregnant woman will be carried out only one (1) year after her delivery.
832
PLACE OF EXECUTION Arts. 84-85
CORPSE OF PERSON EXECUTED
Records to be forwarded to the Office of the President,

when the death sentence has become final.
In all cases where the death sentence has become final, the records of the
case shall be forwarded to the Office of the President for possible exercise of
the pardoning power. (Art. 83, par. 2)
Art. 84. Place of execution and persons who may witness the same. — The
execution shall take place in the penitentiary or Bilibid in a space closed to the
public view and shall be witnessed only by the priests assisting the offender
and by his lawyers and by his relatives, not exceeding six, if he so requests, by
the physician and the necessary personnel of the penal establishment, and by
such persons as the Director of Prisons may authorize.
Place of execution.
The execution shall take place in the penitentiary or Bilibid in a space
closed to the public view.
Persons who may witness execution.

1) priests assisting the offender,
2) offender's lawyers,
3) offender's relatives, not exceeding six, if so requested,
4) physician, and
5) necessary personnel of penal establishment.

A person below 18 years of age may not be allowed to witness an
execution. (Sec. 23, par. 2, Amended Rules and Regulations to
Implement Rep. Act No. 8177)
Art. 85. Provisions relative to the corpse of the person executed and its
burial. — Unless claimed by his family, the corpse of the culprit shall, upon
the completion of the legal proceedings Arts 86-87 EXECUTION
AND SERVICE OF OTHER PENALTIES DESTIERRO
833
subsequent to the execution, be turned over to the institute of learning or
scientific research first applying for it, for the purpose of study and
investigation, provided that such institute shall take charge of the decent
burial of the remains. Otherwise, the Director of Prisons shall order the burial
of the body of the culprit at government expense, granting permission to be
present thereat to the members of the family of the culprit and the friends of
the latter. In no case shall the burial of the body of a person sentenced to death
be held with pomp.
The "burial of the body of a person sentenced to death"

should not "be held with pomp."
The last sentence of Art. 85 prohibits the burying of the corpse of a
person sentenced to death with pomp. This is penalized under Art. 153. The
purpose of the law is to prevent anyone from making a hero out of a criminal.
Art. 86. Reclusidn perpetua, reclusidn temporal, prisidn mayor, prisidn

correccional and arresto mayor. — The penalties of reclusidn perpetua,
reclusidn temporal, prisidn mayor, prisidn correccional and arresto mayor, shall
be executed and served in the places and penal establishments provided by the
Administrative Code in force or which m a y be provided by law in the future.
Art. 87. Destierro. — Any person sentenced to destierro shall not be

permitted to enter the place or places designated in the sentence, nor within
the radius therein specified, w h i c h shall be not more than 250 and not less
than 25 kilometers from the place designated.
Illustration of destierro imposed as a penalty.

A was sentenced to the penalty of destierro, according to which he should
not enter the place within the radius of 25 kilometers from SERVICE OF
ARRESTO MENOR Art. 88
the City Hall of Manila, for a period of two years, four months and one day.
In this case, A was not completely deprived of his liberty, as he could go
freely to whatever place except within the radius of 25 kilometers from the
City Hall of Manila.
834
Destierro is imposed:
1. When death or serious physical injuries is caused or are inflicted
under exceptional circumstances. (Art. 247)
2. When a person fails to give bond for good behavior. (Art.

284)
3. As a penalty for the concubine in the crime of concubinage. (Art.
334)
4. When after lowering the penalty by degrees, destierro is the proper
penalty.
Entering the prohibition area is evasion of the service of

the sentence.
Facts: For the crime committed, the accused was sentenced to the
penalty of destierro, according to which he should not enter while serving the
sentence within the radius of 25 kilometers of the City Hall of Manila. (Art.
87). In that penalty of destierro, the convict could freely go to whatever place,
except within the radius of 25 kilometers from the City Hall of Manila. But the
accused entered Manila while serving the sentence of destierro.
Held: There is evasion of the service of the sentence of destierro.
(People vs. De Jesus, 80 Phil. 748, 750)
Art. 88. Arresto menor. — The penalty of arresto menor shall be served
in the municipal jail, or in the house of the defendant himself under the
surveillance of an officer of the law, w h e n the court so provides in its
decision, taking into consideration the health of the offender and other reasons
which may seem satisfactory to it.
835
Art. 88 SERVICE OF ARRESTO MENOR
Penalty that may be served in the house of defendant.

This article provides that the penalty of arresto menor may be served in
the house of the defendant.
But it is required as a condition that it should be under the surveillance
of an officer of the law.
"When the court so provides in its decision."

Note the use of the clause in the law.
Hence, unless the court makes a statement in its decision that the
accused can serve the sentence in his house, the accused cannot be permitted
to do so by the jailer.
The grounds are the health of the offender and other

reasons satisfactory to the court.
It is not a satisfactory, plausible reason that the accused is a woman of 50
years, respectable member of the community and that her means of subsistence
and that of her husband are a retail store. (People vs. Torrano, C.A., 40 O.G.,
12th Supp., 18)
But where the accused was sentenced to 30 days imprisonment under
Act 3992 and he was suffering from tuberculosis, requiring outside treatment,
he was allowed to serve his sentence in his house.
(People vs. Dayrit, C.A., 40 O.G., 11th Supp., 280)
Title Four
EXTINCTION OF CRIMINAL LIABILITY
Chapter One
TOTAL EXTINCTION OF CRIMINAL
LIABILITY
Art. 89. How criminal liability is totally extinguished. — Criminal

liability is totally extinguished:
1. By the d e a t h of t h e convict, as to t h e personal penalties;
and as to pecuniary penalties, liability therefor is extinguished only w h
e n the death of the offender occurs
before final judgment;
2. By service of the sentence;
3. By amnesty, w h i c h c o m p l e t e l y e x t i n g u i s h e s the
penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in
Article 344 of this Code.
Extinction of criminal liability does not automatically

extinguish the civil liability.
Extinction of criminal liability does not necessarily mean that the civil
liability is also extinguished. (Petralba vs. Sandiganbayan,
G.R. No. 81337, Aug. 16, 1991, 200 SGRA 644, 649)
Causes of extinction of criminal liability distinguished

from causes of justification or exemption.
Causes of extinction of criminal liability arise after the commission of
the offense; while the causes of justification or exemption from
837
criminal liability arise from circumstances existing either before the

commission of the crime or at the moment of its commission.
That criminal liability is totally extinguished is a ground

for motion to quash.
Under Sec. 3(g) of Rule 117 of the Revised Rules of Criminal Procedure,
one of the grounds for motion to quash is that the criminal action has been
extinguished. The order sustaining a motion to quash on this ground
constitutes a bar to another prosecution for the same offense. (Sec. 6, Rule
117)
Art. 89 TOTAL EXTINCTION OF CRIMINAL LIABILITY
By the death of the convict.

The death of the convict, whether before or after final judgment,
extinguishes criminal liability, because one of the juridical conditions of
penalty is that it is personal.
Civil liability is extinguished only when death occurs

before final judgment.
The death of the convict also extinguishes pecuniary penalties only when
the death of the offender occurs before final judgment.
Hence, if the offender dies after final judgment, the pecuniary penalties
are not extinguished.
Where a person is charged with homicide, for instance, the civil liability
for indemnity is based solely on the finding of guilt. If he is acquitted because
of self-defense, the heirs of the deceased have no right to indemnity. Should
the offender die before final judgment, their right to indemnity is likewise
extinguished as there is no basis for the civil liability. Civil liability exists only
when the accused is convicted by final judgment.
Criminal and civil liability is extinguished when the

offender dies before final judgment.
When the accused died while the judgment of conviction against him
was pending appeal, his civil and criminal liability was extinguished by his
death. (People vs. Castillo, C.A., 56 O.G. 4045; People vs. Alison, No. L-30612,
April 27, 1972, 44 SCRA 523, 525)
In view of the death of the accused during the pendency of this case he is
relieved of all personal and pecuniary penalties attendant
838
TOTAL EXTINCTION OF CRIMINAL LIABILITY Art. 89
to his crime, his death occurring before rendition of final judgment. (People
vs. Jose, No. L-28397, June 17, 1976, 71 SCRA 273, 282) Definition of
"final judgment."
The term "final judgment" employed in the Revised Penal Code means
judgment beyond recall. As long as a judgment has not become executory, it
cannot be truthfully said that defendant is definitely guilty of the felony
charged against him. (People vs. Bayotas, G.R. No. 152007, September 2,1994,
236 SCRA 239) Section 7, Rule 16 of the Rules of Court likewise states that a
judgment in a criminal case becomes final after the lapse of the period for
perfecting an appeal or when the sentence has been partially or totally
satisfied or served, or the defendant has expressly waived in writing his right
to appeal.
Effect of the death of the accused pending appeal on his

criminal and civil liability.
General rule —
Death of the accused pending appeal of his conviction extinguishes his
criminal liability as well as the civil liability based solely
on the offense committed.
Exception —
The claim for civil liability survives notwithstanding the death of
accused, if the same may also be predicated on a source of obligation other than
delict, such as law, contracts, quasi-contracts and quasidelicts. (People vs.
Bayotas, supra)
Examples:
a) The claim for civil liability based on law may also be made
— in the offense of physical injuries, since Article 33 of the Civil
Code establishes a civil action for damages on account of physical
injuries, entirely separate and distinct from the criminal action
(See Belamala vs. Polinar, No. L-24098,
November 18, 1967, 21 SCRA 700);
b) Claim for civil liability based on contract may also be made — in the
offense of estafa when the civil liability springs neither solely nor
originally from the crime itself but from a civil contract of purchase
and sale (as when accused had swindled the vendees of the property
839
subject matter of the contract of sale). (See Torrijos vs. Court of

Appeals, No. L-40336, October 24, 1975, 67 SCRA 394)
Where action for recovery of damages must be filed, when

civil liability survives.
If the private offended party, upon extinction, of the civil liability ex
delicto, desires to recover damages from the same act or omission com-
plained of, he must, subject to Section 1, Rule 111 of the Revised Rules of
Criminal Procedure, file a separate civil action, this time predicated not on the
felony previously charged but on other sources of obligation. The source of
obligation upon which the separate civil action is premised determines against
whom the same shall be enforced. Thus —
a) If the same act or omission complained of also arises from quasi-
delict or may, by provision of law, result in an injury to person or
property (real or personal), the separate civil action must be filed
against the executor or administrator
of the estate of the accused pursuant to Sec. 1, Rule 87 of the Rules
of Court.
b) If the same act or omission complained of also arises from
contract, the separate civil action must be filed against the estate of
the accused, pursuant to Sec. 5, Rule 86 of the Rules of Court.
(People vs. Bayotas, supra)
Right of offended party to file separate civil action not lost

by prescription when accused dies pending appeal.
The private offended party need not fear a forfeiture of his right to file
the separate civil action by prescription, in cases where during the prosecution
of the criminal action and prior to its extinction, the private offended party
instituted together therewith the civil action. In such case, the statute of
limitations on the civil liability is deemed interrupted during the pendency of
the criminal case, conformably with provisions of Article 1155 of the Civil
Code. (People vs. Bayotas, supra)
Death of the offended party does not extinguish the

criminal liability of the offender.
The death of the offended party does not extinguish the criminal liability
of the offender, because the offense is committed against the
State. (People vs. Misola, 87 Phil. 830, 833)
840
By service of sentence.
Crime is a debt incurred by the offender as a consequence of his
wrongful act and the penalty is but the amount of his debt. When payment is
made, the debt is extinguished.
Service of sentence does not extinguish the civil liability.
(Salgado vs. Court of Appeals, G.R. No. 89606, Aug. 30, 1990, 189
SCRA 304,310)
By amnesty.
Amnesty, defined.
It is an act of the sovereign power granting oblivion or a general pardon
for a past offense, and is rarely, if ever, exercised in favor of a single
individual, and is usually exerted in behalf of certain classes of persons, who
are subject to trial but have not yet been convicted.
(Brown vs. Walker, 161 U.S. 602)
Amnesty completely extinguishes the penalty and all its effects.

Note the clause in paragraph 3 of Art. 89, which says: "which
completely extinguishes the penalty and all its effects."
Amnesty may be granted after conviction.

The amnesty proclamation in favor of the Hukbalahaps is applicable to
those already undergoing sentence upon the date of its promulgation.
(Tolentino vs. Catoy, 82 Phil. 300)
Examples of amnesty:
1. Proclamation No. 51, dated January 28,1948, by President Roxas,
granting amnesty to those who collaborated with the enemy
during World War II. (See 44 O.G. 408)
2. Proclamation No. 76, dated June 21, 1948, by President
Quirino, extending amnesty to the Huks and PKM
(Pambansang Kaisahan ng mga Magbubukid), who committed
rebellion, sedition, illegal association, etc. (See 44 O.G. 1794)
3. Proclamation No. 80, dated February 28,1987, by President
Aquino, extending amnesty to those who, in the furtherance of
their political beliefs, may have committed treason, conspiracy or
proposal to commit the crime of treason, misprision of treason,
841
espionage, rebellion or insurrection, conspiracy and proposal to

commit rebellion or insurrection, inciting to rebellion or
insurrection, sedition, conspiracy to commit sedition, inciting to
sedition, illegal assemblies, illegal associations, direct assault,
indirect assault, resistance and disobedience to a person in
authority or agents of such person or persons, subversion, and
illegal possession of firearms and explosives.
Civil liability not extinguished by amnesty.

While amnesty wipes out all traces and vestiges of the crime, it does not
extinguish the civil liability of the offender. (U.S. vs. Madlangbayan, 2 Phil.
426, 428-429) By absolute pardon.
Pardon, defined.
It is an act of grace proceeding from the power entrusted with the
execution of the laws which exempts the individual on whom it is bestowed
from the punishment the law inflicts for the crime he has committed.
Kinds of pardon:
(a) Absolute pardon.

(b) Conditional pardon.
A pardon, whether absolute or conditional, is in the nature of a deed, for
the validity of which delivery is an indispensable requisite. Until accepted, all
that may have been done is a matter of intended favor and may be cancelled.
But once accepted by the grantee, the pardon already delivered cannot be
revoked by the authority which granted it.
Pardon in adultery case.

A was charged with the crime of adultery with a married woman. The
married woman, after conviction of both accused, was pardoned by the Chief
Executive.
Does the pardon of the woman have the effect of extinguishing the
criminal liability of A?
No, because (1) the power to extend executive clemency is unlimited, and
(2) that the exercise of that power lies in the absolute and uncontrolled
discretion ofthe Chief Executive. (U.S. vs. Guarin,
30 Phil. 85, 87)
842
But if the one giving the pardon is the offended spouse in adultery, both
offenders must be pardoned by the offended party if said pardon is to be
effective. (People vs. Infante, 57 Phil. 138, 139)
Pardon of murder after evasion of service of sentence.

A was convicted of murder. Subsequently, A evaded the service of the
sentence. A was prosecuted for and convicted of evasion. The President
thereafter pardoned A of the murder.
Held: The pardon refers only to the crime of murder and does not have
the effect of remitting the penalty for evasion of the service of the sentence
committed prior to said pardon. (Alvarez vs. Director of Prisons, 80 Phil. 43)
Amnesty and pardon distinguished.

1. Pardon includes any crime and is exercised individually by the
President; amnesty is a blanket pardon to classes of persons or
communities who may be guilty of political offenses.
2. Pardon is exercised when the person is already convicted; amnesty may
be exercised even before trial or investigation is had.
3. Pardon looks forward and relieves the offender from the consequences
of an offense of which he has been convicted, that is, it abolishes or
forgives the punishment, and for that reason it does "not work the
restoration of the rights to hold public office or the right of suffrage,
unless such rights be expressly restored by the terms ofthe pardon." On
the other hand, amnesty looks backward and abolishes and puts into
oblivion the offense itself; it so overlooks and obliterates the offense with
which he is charged that the person released by amnesty stands before
the law precisely as though he had committed no offense. (Barrioquinto,
et al. vs. Fernandez, 82 Phil. 642, 646-647)
Thus -
(a) Pardon does not alter the fact that the accused is a recidivist,
because it produces the extinction only of the personal
effects ofthe penalty. (U.S. vs. Sotelo, 28 Phil. 147, 160)
(b) Amnesty makes an ex-convict no longer a recidivist, because it
obliterates the last vestige ofthe crime. (U.S. vs. Francisco, 10
Phil. 185, 187)
4. Both do not extinguish the civil liability of the offender. (Art. 113)
843
5. Pardon, being a private act of the President, must be pleaded and

proved by the person pardoned; while amnesty being by Proclamation
of the Chief Executive with the concurrence of Congress, is a public act
of which the courts should take judicial notice. (Barrioquinto, et al. vs.
Fernandez, supra)
By prescription of crime and by prescription of penalty.

By prescription, the State or the People loses the right to prosecute the
crime or to demand the service of the penalty imposed. (Santos vs.
Superintendent, 55 Phil. 345)
Definitions.
Prescription ofthe crime is the forfeiture or loss of the right of the State
to prosecute the offender after the lapse of a certain time.
Prescription of the penalty is the loss or forfeiture of the right of the
Government to execute the final sentence after the lapse of a certain time.
Two conditions necessary in prescription of penalty.

(a) That there be final judgment.
(b) That the period of time prescribed by law for its enforcement has
elapsed.
By the marriage of the offended woman.

Marriage of the offender with the offended woman after the commission
of any ofthe crimes of rape, seduction, abduction or acts of lasciviousness, as
provided in Art. 344, must be contracted by the offender in good faith. Hence,
marriage contracted only to avoid
844
PRESCRIPTION OF CRIMES Art. 90
criminal liability is devoid of legal effects. (People vs. Santiago, 51

Phil. 68, 70)
Art. 90. Prescription of crimes. — Crimes punishable by death, reclusidn

perpetua or reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen
years.
Those punishable by a correctional penalty shall prescribe in ten years;
with the exception of those punishable by arresto mayor, which shall prescribe
in five years.
The crime of libel or other similar offenses shall prescribe in one year.
The offenses of oral defamation and slander by deed shall prescribe in
six months.
Light offenses prescribe in t w o months.
When the penalty fixed by law is a compound one, the highest penalty
shall be m a d e the basis of the application of the rules contained in the first,
second, and third paragraphs of this article. (As amended by Rep. Act No.
4661)
Rep. Act No. 4661 not applicable to cases already filed in

court prior to June 18,1966.
The provision of this amendatory Act (reducing the prescriptive period
ofthe crime of libel or other similar offenses, from two years to one year) shall
not apply to cases of libel already filed in court at the time of approval of this
amendatory Act. (Sec. 2, Rep. Act No. 4661, approved June 18, 1966)
In computing the period of prescription, the first day is to

be excluded and the last day included.
Facts: The accused committed slight physical injuries on May
28, 1953. An information was filed on July 27, 1953. This crime, be-
846
ing a light offense, prescribes in two months according to Art. 90. The
Municipal Court sustained the motion to quash and dismissed the case,
Art. 90 PRESCRIPTION OF CRIMES
holding that the information was filed on the 61st day, not on the 60th day
from May 28, 1953, "the day on which the crime is discovered by the
offended party."
Held: The information should be considered as filed on the 60th day. In
the computation of a period of time within which an act is to be done, the law
in this jurisdiction has always directed that the first
day be excluded and the last included. (See Art. 13, Civil Code.)
A month is computed as the regular 30-day month. The running of the
prescriptive period should commence from the day following the day on which
the crime was committed. (People vs. Del Rosario,
97 Phil. 67, 70)
But as regards the month of February of a leap year, February
28 and 29 should be counted as separate days in computing periods of
prescription. (Namarco vs. Tuazon, 29 SCRA 70, cited in People vs. Ramos,
No. L-25644, May 9, 1978, 83 SCRA 1, 13)
Thus, where the prescriptive period was supposed to commence on
December 21,1955, the filing of the action on December 21,1965, was done
after the ten-year period had elapsed — since 1960 and 1964 were both leap
years, and the case was thus filed two (2) days too late.
Rule where the last day of the prescriptive period falls on

a Sunday or legal holiday.
Where the last day of the prescriptive period for filing an information
falls on a Sunday or legal holiday, the information can no longer be filed on
the next day as the crime has already prescribed.
(Yapdiangco vs. Buencamino, No. L-28841, June 24,1983,122 SCRA
713)
Prescription of oral defamation and slander by deed.

As to the prescription of oral defamation and slander by deed,
distinction should be made between simple and grave slander. Simple slander
prescribes in two months. Grave slander prescribes in six months. (People vs.
Maceda, 73 Phil. 679, 681)
Crimes punishable by arresto menor or a fine not

exceeding P200 prescribe in two months.
The lower court ruled that the offense charged was a light felony under
par. 3 of Art. 9 of the Revised Penal Code, which, as provided in Art. 90,
prescribes in two months. The Solicitor General cites Art.
846
26 of the same Code and contends that inasmuch as the penalty imposable
under Art. 195 ofthe Code is arresto menor, or a fine not exceeding 200 pesos,
then a fine of200 pesos, imposable as a single or as an alternative penalty, may
be considered as a correctional penalty and so under Art. 90, the offense
charged prescribes in ten years and not two months. This Court has already
ruled that a violation of Art. 195 of the Revised Penal Code, punishable with
arresto menor or a fine not exceeding P200.00 is a light felony under Art. 9 of
said Code and prescribes in two months, according to Art. 90, par. 6, of the
same
Code. (People vs. Canson, 101 Phil. 537, 538-539, citing People vs. Yu Hai, 99
Phil. 725, and People vs. Aquino, 99 Phil. 1059)
Two months in Art. 90, regarding the prescriptive period for light
felonies, means 60 days. (People vs. Del Rosario, 97 Phil. 67, 71)
Penalty for attempted bribery is destierro, which

prescribes in 10 years, being a correctional penalty.
The period of prescription of the offense of attempted bribery,
penalized with destierro, is 10 yerrs according to Article 90, for the reason that
destierro is classified ;iS a correctional penalty under Art.
25. (Dalao vs. Geronimo, 92 Phil. 1042, 1043)
Prescription of crimes punishable by fines.

Fines are also classified as afflictive, correctional, or light penalty. (Art.
26)
The crimes punishable by fines shall prescribe in 15 years, if the fine is
afflictive; or in 10 years, if it is correctional; or in two months, if the fine is
light. The subsidiary penalty for nonpayment ofthe fine should not be
considered in determining the period of prescription of such crimes. (People
vs. Basalo, 101 Phil. 57, 61-62)
Note: Since light felony is specifically defined in Art. 9 as an infraction
of the law for the commission of which the penalty of arresto
menor or a fine not exceeding P200,
or both, is provided, a fine of P200 provided for a light felony
should not be considered correctional.
When the penalty is a compound one, the highest penalty

is the basis of the application of the rules in Art. 90.
There is no merit in the contention that the crime of perjury, which is
punishable by arresto mayor in its maximum period to prision
847
correccional in its minimum period, has already prescribed. Where the

penalty fixed by law is a compound one, the highest penalty shall, according to
the last paragraph of Art. 90, be made the basis of the application of the rules
contained therein. The penalty for the crime of perjury being a compound
one, the higher of which is correctional, said crime prescribes in ten years.
(People vs. Cruz, 108 Phil. 255, 259)
When fine is an alternative penalty higher than the other

penalty which is by imprisonment — prescription of the
crime is based on the fine.
Under Art. 319 of the Code, the penalty for the offense is arresto mayor
or a fine double the value of the property involved. The accused sold 80
cavans of palay with a value of P320, which he had mortgaged to the PNB,
without the knowledge and consent of the mortgagee.
Held: The period of prescription applicable is ten years, instead of five
years. True, the offense under Art. 319 insofar as it is penalized with arresto
mayor prescribes in five (5) years, but the fine equivalent to double the
amount of the property involved may also be imposed as a penalty, and when
said imposable penalty is either correctional or afflictive, it should be made
the basis for determining the period of prescription. (People vs. Basalo, 101
Phil. 57, 61)
The ruling in the Basalo case applies even if the penalty is

arresto mayor and fine.
When the penalty prescribed by the Code is arresto mayor and fine (Art.
316, par. 2), and the fine is afflictive (P15.000 to P45.000), the fine should be
the basis ofthe application of the rules in Art. 90.
(People vs. Crisostomo, G.R. No. L-16945, Aug. 31, 1962, 5 SCRA
1048, 1052-1053)
Prescriptive periods of offenses punished under special

laws and municipal ordinances.
Act No. 3763, amending Act No. 3326, provides:
1. Offenses punished only by a fine or by imprisonment for not more
than one month, or both, prescribe after 1 year;
2. Offenses punished by imprisonment for more than one month, but
less than two years — after 4 years;
3. Offenses punished by imprisonment for two years or more but less
than six years — after 8 years;
848
4. Offenses punished by imprisonment for six years or more — after

12 years;
5. Offenses under Internal Revenue Law — after 5 years;
6. Violations of municipal ordinances — after 2 months;
7. Violations ofthe regulations or conditions of certificate of
convenience by the Public Service Commission — after 2 months.
Act No. 3326 is not applicable where the special law provides for its own
prescriptive period. (People vs. Ramos, No. L-25265, May 9, 1978, 83 SCRA 1,
12)
Prescription of violations penalized by special laws and

ordinances — when it begins to run.
Prescription shall begin to run from the day of the commission ofthe
violation ofthe law, and if the same be not known at the time, from the
discovery thereof and the institution of judicial proceedings for its
investigation and punishment. (Sec. 2, Act No. 3326) When interrupted.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
(Sec. 2, Act No. 3326)
Defense of prescription may be raised during the trial or

during the appeal.
The rule in Section 10, Rule 113 of the Rules of Court (now Section 9,
Rule 117 ofthe Revised Rules of Criminal Procedure) that if the accused
failed to move to quash before pleading, he must be deemed to have waived
all objections, which are grounds of a motion to quash, cannot apply to the
defense of prescription, which under Art. 89 of the Revised Penal Code
extinguishes criminal liability.
(People vs. Castro, 95 Phil. 462, 464-465)
Prescription, although not invoked in the trial, may be invoked on
appeal. (People vs. Balagtas, 105 Phil. 1362-1363 [Unrep.])
The accused cannot be convicted of an offense lesser

than that charged if the lesser offense had already
prescribed at the time the information was filed.
Where an accused has been found to have committed a lesser offense
includible within the offense charged, he cannot be convicted of the lesser
offense, if it has already been prescribed. To hold otherwise would be to
849
sanction the circumvention of the law on prescription by the simple expedient

of accusing the defendant ofthe graver offense.
(Francisco vs. CA, 122 SCRA 545)
People vs. Rarang

(C.A., 62 O.G. 6458)
Facts: Defendant Dominador Rarang was charged with the crime

of grave slander in an information filed on October 19,1962, for having
allegedly proffered and uttered, on or about July 18,1962, slanderous
words and expressions against complainant Fausto Carlos, Jr., such as
"hindi kami natatakot sa inyo, mga tulisan." He filed a motion to quash
the information on the ground that the crime had prescribed because
the offense alleged in the information, although designated as grave
slander, should properly be classified as slight oral defamation which
prescribes in two months; but said motion, opposed by the prosecution,
was denied.
After hearing the evidence, the Court of First Instance of Manila
found that "there is evidence beyond reasonable doubt that the herein
accused slandered the complainant, as established by the prosecution,
the said offense, however, being slight in nature as it arose from the heat
of anger, the same being defined and penalized under Article 358 of the
Revised Penal Code," but instead of dismissing the case, the Court
sentenced the defendant to pay a fine of P50.00 with subsidiary
imprisonment in case of insolvency, and to pay the costs.
Held: The accused cannot be convicted of the offense of slight oral
defamation necessarily included in the offense of grave slander charged
850
COMPUTATION OF PRESCRIPTION OF OFFENSES Art. 91
in the information, where the lesser offense had already prescribed at

the time the information wag filed.
Prescription does not divest court of jurisdiction; it is a

ground for acquittal of the accused.
When there is a plea of prescription by the defense and the same
appears from the allegation of the information or is established, the court must
exercise jurisdiction, not inhibit itself, holding the action to have prescribed
and absolving the defendant. (Santos vs. Superintendent, 55 Phil. 345, 349)
Art. 91. Computation of prescription of offenses. — The period of

prescription shall c o m m e n c e to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and shall be
interrupted by the filing of the complaint or information, and shall c o m m e n
c e to run again w h e n such proceedings terminate without the accused being
convicted or acquitted, or are unjustifiably stopped for any reason not
imputable to him.
The term of prescription shall not run w h e n the offender is absent
from the Philippine Archipelago.
Outline of the provisions:

1. The period of prescription commences to run from the day on
which the crime is discovered by the offended party, the
authorities or their agents.
2. It is interrupted by the filing of the complaint or information.
3. It commences to run again when such proceedings terminate
without the accused being convicted or acquitted or are
unjustifiably stopped for any reason not imputable to him.
4. The term of prescription shall not run when the offender is absent
from the Philippines.
Illustration of rules Nos. 1, 2 and 3.

A committed serious oral defamation against Kin March, 1935.
As K came to know of the act complained of only on March 4, 1936, K filed the
complaint on that date.
851
Art. 91 COMPUTATION OF PRESCRIPTION OF OFFENSES
Because his official duties needed him to be in Mindanao, K was not able
to attend the hearing of the case. Upon motion of defendant A, the case was
dismissed on January 21, 1937, without prejudice to the fiscal filing again the
same action.
On February 13,1937, the case was revived by the fiscal by filing a new
information. Serious oral defamation prescribes in 6 months. From what date
must the six-month period be counted?
It must be counted from January 21, 1937. (People vs. Aquino, 68 Phil.
588, 590)
It cannot be counted from March, 1935, when the crime was committed,
because it was discovered by the offended party only on March 4, 1936, and
the running of the period of prescription stopped on that date by the filing
ofthe complaint in court. Hence, it must be counted from January 21,1937,
because when the case was dismissed on that date, the period of prescription
commenced to run again. Note that the proceedings terminated without the
accused being convicted or acquitted.
The period of prescription commences to run from the date

of commission of crime if it is known at the time of its
commission.
Thus, if there is nothing that was concealed or needed to be discovered,
because the entire series of transactions was by public instruments, duly
recorded, the crime of estafa committed in connection with said transactions
was known to the offended party when it was committed and the period of
prescription commenced to run from the date of its commission. (People vs.
Dinsay, C.A., 40 O.G., 12th Supp., 50)
The offended party had constructive notice of the forgery after the deed
of sale, where his signature had been falsified, was registered in the Office of
the Register of Deeds on August 26,1948. (Cabral vs.
Puno, No. L-41692, April 30, 1976, 70 SCRA 606, 609)
From the date of commission or from the date of

discovery.
The period of prescription of crime commences to run from the
commission of the offense or its discovery, if the commission of the same was
unknown. (People vs. Tamayo, 40 O.G. 2313)
852
The period of prescription for the offense of failure to register with the
SSS shall begin from the day of the discovery of the violation if this was not
known at the time of its commission. A contrary view would be dangerous as
the successful concealment of an offense during the period fixed for its
prescription would be the very means by which the offender may escape
punishment. (People vs. Monteiro,
G.R. No. 49454, Dec. 21, 1990, 192 SCRA 548, 551)
It is discovery of crime, not discovery of offender.

The discovery of the crime should not be confused with the discovery of
the offender. The fact that the culprit is unknown will not prevent the period
of prescription from commencing to run.
It is not necessary that the accused be arrested. (People vs. Joson, 46
Phil. 380, 384)
Period of prescription of continuing crime never runs.

Facts: The accused was charged with violation of a municipal ordinance
in that he constructed dikes in navigable waterways (river and creek) of the
public domain without authorization from the Secretary of Public Works and
Communications. The dikes were constructed in 1939 while the case was filed
in 1947. Did the crime prescribe?
Held: The prescriptive period of continuing crime, cannot begin to run
because there could be no termination of continuity and the crime does not
end. The case would have been different had the information alleged that the
dikes existed until such date obstructing the course ofthe streams, because the
crime ended on that date. (Arches vs. Bellasillo, 81 Phil. 190, 192)
The crime is discovered by (1) the offended party, (2) the

authorities or (3) their agents.
A saw the killing with treachery of B by C. After the commission ofthe
crime, C threw the dead body of B into the river. The dead body of B was
never seen again or found. A was neither an authority nor an agent of an
authority, nor a relative of B. For 25 years, A kept silent as to what he
witnessed. After 25 years, A revealed to the authorities
that C murdered B.
May C be prosecuted for murder even if 25 years already elapsed?
853
Yes, because the period of prescription did not commence to run. The
commission of the crime was known only to A, who was not the offended
party, an authority or an agent of an authority. It was discovered by the
authorities only when A revealed to them the commission of the crime.
Period of prescription was interrupted when preliminary

examination was made by municipal mayor but accused
could not be arrested because he was in hiding.
The accused killed a man on June 19, 1911. The municipal president,
who began the preliminary investigation because the justice of the peace was
absent, issued a warrant of arrest. The accused could not be arrested because
they fled to an unknown place. The information for homicide was filed on
June 29,1927. Accused Isidro Parao was captured in July, 1927. Did the
offense prescribe?
Held: No. The preliminary investigation conducted by the municipal
president, in the absence of the justice of the peace or auxiliary justice of the
peace, partakes of the nature of a judicial proceeding. Judicial proceedings
having been taken against the accu jed and his arrest having been ordered,
which could not be carried into effect on account of his default, the crime has
not prescribed. (People vs. Parao, 52 Phil. 712, 715)
The crime of homicide prescribed in 15 years under the old Penal Code.
The proceedings in this case were stopped for reasons imputable to the
accused, that is, they fled to an unknown place, making it difficult to arrest
them for further proceedings.
Filing of complaint with the prosecutor's office interrupts

running of period of prescription of offense charged.
Section 1, Rule 110, ofthe Revised Rules of Criminal Procedure
provides:
"SEC. 1. Institution of criminal actions. — Criminal actions shall be
instituted as follows:
(a) For offenses where a preliminary investigation is required
pursuant to Section 1 of Rule 112, by filing the complaint with the
proper officer for the purposes of conducting the requisite
preliminary investigation;
(b) For all other offenses, by filing the complaint or information
directly with the Municipal Trial Courts and Municipal Circuit
854
Trial Courts or the complaint with the office of the prosecutor. In

Manila and other chartered cities, the complaint shall be filed with
the office of the prosecutor unless otherwise provided in their
charters.
The institution of the criminal action shall interrupt the period of
prescription of the offense charged unless otherwise provided in special laws."
(Emphasis supplied.)
The filing of the complaint in the municipal court, even if it

be merely for purposes of preliminary examination or
investiga-
tion, interrupts the period of prescription.
In view of this diversity of precedents, and in order to provide guidance
for Bench and Bar, this Court has re-examined the question and, after mature
consideration, has arrived at the conclusion that the true doctrine is, and
should be, the one established by the decisions holding that the filing of the
complaint in the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the
period of prescription of the criminal responsibility, even if the court where
the complaint or information is filed can not try the case on its merits. Several
reasons buttress this conclusion: first, the text of Article 91 of the Revised
Penal Code, in declaring that the period of prescription "shall be interrupted
by the filing ofthe complaint or information" without distinguishing whether
the complaint is filed in the court for preliminary examination or investigation
merely, or for action on the merits. Second, even if the court where the
complaint or information is filed may only proceed to investigate the case, its
actuations already represent the initial step ofthe proceedings against the
offender. Third, it is unjust to deprive the injured party of the right to obtain
vindication on account of delays that are not under his control. All that the
victim ofthe offense may do on his part to initiate the prosecution is to file the
requisite complaint.
And it is no argument that Article 91 also expresses that the interrupted
prescription "shall commence to run again when such proceedings terminate
without the accused being convicted or acquitted," thereby indicating that the
court in which the complaint or information is filed must have power to
acquit or convict the accused.
Precisely, the trial on the merits usually terminates in conviction or
acquittal, not otherwise. But it is in the court conducting a preliminary
855
investigation where the proceedings may terminate without conviction or

acquittal, if the court should discharge the accused because no prima facie case
has been shown.
Considering the foregoing reasons, the Court hereby overrules the
doctrine ofthe cases of People vs. Del Rosario, L-15140, December 29, 1960,
and People vs. Coquia, L-15456, promulgated June 29,
1963. (People vs. Olarte, No. L-22465, Feb. 28, 1967, 19 SCRA 494, 500-501)
The complaint or information that will interrupt the period

of prescription must be the proper information or
complaint corresponding to the offense.
On April 1, 1959, Felipe Abuy was charged in the Municipal Court of
Zamboanga City with the crime of trespass to dwelling committed against
Ruperto Carpio. Upon motion of the prosecution, the case was dismissed on
the ground that the evidence so far presented would not sustain accused's
conviction. Subsequently, on Nov. 13,
1959, Abuy was charged before the same court with the crime of unjust
vexation committed on the person of Michaela de Magadia. Abuy filed a
motion to quash the information on the ground of prescription. The court
sustained the motion.
The complaint or information that will interrupt the period must be the
proper information or complaint corresponding to the offense. Here, the first
information was for trespass to dwelling, the elements of which are entirely
different from the elements of the offense of unjust vexation. There is nothing
to show that the two offenses are related to each other. Consequently, the filing
of one does not interrupt the prescriptive period as to the other. (People vs.
Abuy, G.R.
No. L-17616, May 30, 1962, 5 SCRA 222, 226-227)
Effect of filing amended complaint or information upon

period of prescription.
If the original complaint or information is filed within the prescriptive
period and the amendment was made after said period, a distinction should be
made between a new and different act complained of and mere correction or
new specifications to amplify and give greater precision to the allegations in
support of the cause originally presented.
856
If it is merely a correction of a defect, the date of the original complaint

or information should be considered. (LTB vs. Ramos, G.R. No. 41399, Aug. 9,
1934)
The filing of the information in the court of Batangas for

estafa, even if erroneous, because it had no territorial
jurisdiction over the offense charged, tolls the running of
the prescriptive period of the crime, since the jurisdiction
of a court is determined in criminal cases by the
allegations of the complaint or information, and not by the
result of proof.
In a case, respondent judge, in sustaining the ground of prescription,
ruled that there was no interruption of the prescriptive period during the
pendency of the case in his court, because it had no territorial jurisdiction over
the offense charged, and that "[t]he proceedings contemplated by Article 91
are proceedings which are valid and before a competent court."
Held: Settled is the rule that the jurisdiction of a court is determined in
criminal cases by the allegations of the complaint or information, and not by
the result of proof. It follows that the Batangas court was vested with lawful
jurisdiction over the criminal complaint filed with it, which expressly alleged
that the offense was committed "in the Municipality of Batangas, Province of
Batangas," and that the proceedings therein were valid and before a
competent court, until the same court issued its order, dismissing the case and
declaring itself without territorial jurisdiction on the basis of the evidence
presented to it by both the prosecution and the accused.
(People vs. Galano, No. L-42925, Jan. 31, 1977, 75 SCRA 193, 198)
"Proceedings terminate without the accused being

convicted or acquitted."
In the case of People vs. Aquino, 68 Phil. 588, 590, when the case was
dismissed upon petition of accused Aquino, the proceeding terminated without
the accused being convicted or acquitted. The period of prescription
commenced to run again.
Suppose, the case was dismissed without the consent or over the
objection of the accused who had already been arraigned?
In this case, the dismissal is final. A cannot be prosecuted any more for
the same offense, even within the prescriptive period, on the ground of double
jeopardy.
857
The termination of a criminal case contemplated in Article

91 on prescription of crimes refers to a termination that is
final as to amount to a jeopardy that would bar a
subsequent prosecution.
One Lauron was charged with the crime of grave oral defamation which
was discovered on December 15, 1973. The information was filed in court on
January 24,1974. On March 14,1974, the court, on Lauron's motion to dismiss,
issued an order of dismissal, on the ground that the preliminary investigation
conducted by the fiscal did not comply with the requirements of Presidential
Decree No. 77. Lauron had not been arraigned. The case was refiled in court
under a new information on March 3,1975. The crime of grave oral
defamation prescribes in six months.
Said the Supreme Court:
"We hold that the termination of a criminal case
contemplated in Article 91 refers to a termination that is final, in
the sense of being beyond reconsideration, as in the cases of an
unappealed conviction or an acquittal."
Comment: Article 91 provides that the period of prescription (of
offenses) "shall commence to run again when such proceedings (the filing
ofthe complaint or information) terminate without the accused being convicted
or acquitted." (italics supplied)
If the "termination x x x refers to a termination that is final, x x x as in
the cases of an unappealed conviction or an acquittal," there would be no
occasion to speak of prescription of offenses, no matter how long a time has
elapsed, because the accused is already convicted (and he does not appeal) or
acquitted.
Article 91 may be considered only when the accused, who invokes it, is
being charged with and prosecuted for an offense that allegedly has already
prescribed. If the proceedings, which began with the filing of the complaint or
information, terminate in the conviction of the accused or in his acquittal (the
termination being final), how may the question of prescription arise? Or, what
period of prescription "shall commence to run again?"
This is why the law says, "without the accused being convicted or
acquitted." In such case, the accused may still be prosecuted, but with the
previous termination of the proceedings, the question of prescription may still
arise, because the period of prescription ran again. At the time of the new
prosecution, the crime may have already prescribed.
858
"Or are unjustifiably stopped for any reason not imputable

to him."
Thus, if the proceedings are stopped for a reason imputable to the
accused, the period of prescription does not commence to run again.
Example:
When the accused has evaded arrest and the case has to be archived by
the court, the proceedings are stopped because ofthe fault of the accused. The
case cannot be tried if he is not present.
(See also the case of People vs. Parao, 52 Phil. 712)
The term of prescription does not run when the offender is

absent from the Philippines.
A published a libel in a newspaper and immediately left for Hongkong
where he remained for three years. Later, he returned to the Philippines. Can
A be prosecuted for libel upon his return to his country?
Yes, because the crime of libel did not prescribe. A was absent from
the Philippines during the period when the crime would have prescribed.
Prescription of election offenses — (1) if discovery of

offense is incidental to judicial proceedings, prescription
begins when such proceeding terminates; otherwise, (2)
from date of commission of offense.
If the discovery of the offense is incidental to judicial proceedings in
election contest, prescription begins when such proceedings
terminate.
But, if the falsification committed by the inspectors in connection with
the counting of the votes and the preparation of election returns was known to
the protestants and their election watchers before the filing of the election
protests, the period of prescription began from the date of the commission of
the offense. (People vs. Carino, 56 Phil. 109, 114)
Art. 91 may apply when a special law, while providing a

prescriptive period, does not prescribe any rule for the
applica-
tion of that period.
859
Thus, in a case where the accused is prosecuted for violation of the Usury
Law, there being no rule in Act No. 4763 regarding the enforcement of the
period of prescription established thereby, pursuant to Article 10 of the
Revised Penal Code, the rule provided
for in Article 91 of said Code shall be applied, according to which the period of
prescription of crimes shall commence to run from the time of the
perpetration of the offense and in case the commission of the same is
unknown, from the day on which the crime is discovered by the offended
party, the authorities or their agents. (People vs. Tamayo,
C.A., 40 O.G. 2313)
Prescription of the offense of false testimony — from time

principal case is finally decided.
With regard to the crime of false testimony against the defendant (Art.
180), considering that the penalties provided therefor are made to depend
upon the conviction or acquittal of the defendant in the principal case, the act
of testifying falsely does not therefore constitute an actionable offense until the
principal case is finally decided. And before an act becomes a punishable
offense, it cannot possibly be discovered as such by the offended party, the
authorities or their agents. (People vs. Maneja, 72 Phil. 256, 257-258)
860
PRESCRIPTION OF PENALTIES Art. 92
This is true only when the false testimony is against the defendant. As
regards false testimony in favor of the defendant, there is a specific penalty
which does not depend on the conviction or acquittal ofthe defendant. (Art.
181)
Art. 92. When and how penalties prescribe. — The penalties imposed by
final sentence prescribe as follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;

3. Correctional penalties, in ten years, with the exception of the
penalty of arresto mayor, w h i c h prescribes in five years;
4. Light penalties, in one year.
The penalties must be imposed by final sentence.

Note the first sentence of this article which specifically requires that the
penalties must be "imposed by final sentence." Hence, if the convict appealed
and thereafter fled to the mountains, the penalty imposed upon him would
never prescribe, because pending the appeal, the sentence is not final.
In prescription of crimes, it is the penalty prescribed by

law that should be considered; in prescription of penalties,
it is the penalty imposed that should be considered.
A committed the crime of falsification punishable by prisidn mayor.
Twelve years elapsed since the crime was discovered by the authorities. Then,
the fiscal filed an information for falsification. A was arrested and prosecuted.
During the trial, A proved two mitigating circumstances without any
aggravating circumstance. Did the crime prescribe?
No, because although the proper penalty to be imposed is prision
correccional, the penalty one degree lower, in view of the privileged
mitigating circumstance (Art. 64, par. 5), is the penalty of prision mayor
which is prescribed by the law for the crime that should be Art. 92
PRESCRIPTION OF PENALTIES
861
considered. Art. 90 uses the words, "Crimes punishable by." Hence, the
crime did not prescribe, because the time that elapsed is not more than 15
years.
But suppose that in the same problem, A commenced to serve the
sentence and after a month, he escaped and remained at large for twelve
years, in case he is captured thereafter, can he be required to serve the
remaining period of his sentence? No, because the penalty ofprision
correccional already prescribed. Art. 92 uses the words "the penalties imposed
by final sentence."
Fine as a light penalty.

Under Art. 26, a fine of less than f*200 is a light penalty, and if not less
than f*200, it is a correctional penalty. Under Art. 9, par. 3, a light felony is
punishable by a light penalty, whose fine does not exceed r*200. Under Art. 90,
light offenses prescribe in two months. If the fine imposed be exactly P200,
should it prescribe in two months as a light penalty or in ten years as
correctional penalty?
In the case of People vs. Hu Hai @ Haya, 99 Phil. 725, 727, the Supreme
Court held that where the question at issue is the prescription of a crime and
not the prescription of a penalty, Art. 9 should prevail over Art. 26. Art. 26 has
nothing to do with the definition of offenses but merely classifies fine when
imposed as a principal penalty.
Illustrations:
1. A committed a crime for which the law provides a fine of f*200 as a
penalty. What is the prescriptive period of the crime? Two months. The
issue here is not the prescription of penalty, because there is no final
sentence and A has not evaded the sentence. Art. 9 shall prevail. Since
the fine does not exceed F200, the crime committed is a light felony.
2. But suppose that A was convicted, he could not pay the fine of f*200;
and was made to serve subsidiary imprisonment. Then, while serving
subsidiary imprisonment, he escaped, thereby evading the service of his
sentence. What is the prescriptive period? Ten years. The issue here is
prescription of penalty. Art. 26 prevails. Since the fine is not less than
P200, it is a correctional penalty.
Art. 93
The subsidiary penalty for nonpayment of the fine is

immaterial.
862
COMPUTATION OF PRESCRIPTION OF PENALTIES
A fine of f*525, being a correctional penalty, prescribes in 10 years. That
the subsidiary imprisonment could not exceed six months is immaterial.
(People vs. Salazar, 98 Phil. 663, 665)
Art. 93. Computation ofthe prescription of penalties. — The period of

prescription of penalties shall c o m m e n c e to run from the date w h e n the
culprit should evade the service of his sentence, and it shall be interrupted if
the defendant should give himself up, be captured, should go to some foreign
country with w h i c h this Government has no extradition treaty, or should
commit another crime before the expiration of the period of prescription.

1. The period of prescription of penalties commences to run from the date
when the culprit evaded the service of his sentence.
2. It is interrupted if the convict —
(1) Gives himself up,
(2) Be captured,
(3) Goes to a foreign country with which we have no extradition
treaty, or
(4) Commits another crime before the expiration of the period of
prescription.
The period of prescription of penalties shall commence to
run again when the convict escapes again, after having been
captured and returned to prison.
Elements:
1. That the penalty is imposed by final sentence;
2. That the convict evaded the service of the sentence by escaping during
the term of his sentence;
863
Art. 93
3. That the convict who escaped from prison has not given himself up, or
been captured, or gone to a foreign country with which
we have no extradition treaty, or committed another crime;
4. That the penalty has prescribed, because of the lapse of time from the
date of the evasion of the service of the sentence by the convict.
Evasion of the service of the sentence is an essential

element of prescription of penalties.
According to Art. 93, the period of prescription of penalties commences
to run from the date when the culprit should evade the service of his sentence.
Infante vs. Warden

(92 Phil. 310)
Facts: In this case, the accused was convicted of murder and
sentenced to 17 years, 4 months and 1 day of reclusidn temporal. After
serving 15 years, 7 months and 11 days, on March 6, 1939, he was
granted a conditional pardon. The condition of his pardon was that he
should not commit any crime in the future. On April 25, 1949, he was
found guilty of driving without license. He was committed to prison for
violation of said conditional pardon. Between March 6, 1939, and April
25, 1949, more than 10 years elapsed.
The accused interposed the defense of prescription, contending
that since the remitted portion of his original penalty was less than 6
years (like prisidn correccional), the prescriptive period of that penalty
was only 10 years.
Held: The defense of prescription will not prosper because there
was no evasion of the service ofthe sentence. There was no evasion of the
service ofthe sentence in this case, because such evasion presupposes
escaping during the service of the sentence consisting in deprivation of
liberty.
Period of prescription that ran during the time the convict

evaded service of sentence is not forfeited upon his
capture.
864
The period of prescription that ran during the evasion is not forfeited, so
that if the culprit is captured and evades again the service of his sentence, the
period of prescription that has run in his favor
should be taken into account. (Albert)
Art. 93
Example:
A committed a crime punishable by prision correccional. He was
convicted after trial. While serving sentence for one month, A escaped. He
remained at large for 5 years. Then, he was captured. After staying in prison
for two months, he escaped again and remained at large for 6 years. In this
case, if captured again, A cannot be required to serve the remaining portion of
his sentence, because the penalty of prision correccional prescribes in ten
years. On two occasions, A evaded the service of his sentence for a total of
eleven years.
"Should go to some foreign country with which this

Government has no extradition treaty."
Suppose the Government has extradition treaty with the country to
which the offender escaped, but the crime committed is not included in the
treaty, will that fact interrupt the running of the prescriptive period?
It is believed that it would interrupt the running ofthe prescriptive
period.
"Should commit another crime before the expiration of the

period of prescription."
Thus, if A, sentenced to suffer 4 months and 11 days of arresto mayor,
escaped from jail and remained at large for 4 years, 11 months and 28 days,
but on the next day he committed theft and was arrested 6 months after, A can
be required to serve the remaining period of his sentence of 4 months and 11
days. The reason is that A committed a crime (theft) before the expiration of
five years, the period of prescription of the penalty of arresto mayor.
Evading the service of the sentence is not committing a

crime before the expiration of the period of prescription of
penalties.
865
It has been asked whether or not the evasion of the service of the
sentence, being in itself a crime (Art. 157), should interrupt the running ofthe
period of prescription of penalties.
The clause "should commit another crime before the expiration of the
period of prescription" refers to crime committed when the Art. 93
period of prescription has already commenced to run. On the other

hand, Art. 93 specifically provides that "the period of prescription of
penalties shall commence to run from the date when the culprit should evade
the service of his sentence."
Hence, this evasion of the service ofthe sentence, which is a requisite in
the prescription of penalties, must necessarily take place before
the running of the period of prescription and cannot interrupt it.
Acceptance of conditional pardon interrupts the

prescriptive period.
The acceptance of a conditional pardon also interrupts the prescriptive
period, likening such acceptance to the case of one who flees from this
jurisdiction. (People vs. Puntillas, G.R. No. 45269, June 15, 1938)
Reason why evasion of service of sentence is taken in

favor of the convict in prescription of penalties.
"If a convict under confinement, at the risk of being killed, succeeds in
breaking jail and also succeeds in evading re-arrest for a certain period of
time which by no means is short, despite the efforts of all the instrumentalities
of the Government including sometimes the setting of a prize or reward on his
head, which thereby enlists the aid ofthe citizenry, the law calls off the search
for him, and condones the penalty. But during that period of prescription the
escaped convict lives a life of a hunted animal, hiding mostly in the mountains
and forests in constant mortal fear of being caught. His life far from being
happy, comfortable and peaceful is reduced to a mere existence filled with
fear, discomfort, loneliness and misery. As the distinguished penal law
commentator Viada said, the convict who evades sentence is sometimes
sufficiently punished by his voluntary and self-imposed banishment, and at
times, that voluntary exile is more grievous than the sentence he was trying to
avoid. (Viada y Villaseca, Codigo Penal, Vol. Ill, p. 41, 5th ed.) And all the
time he has to utilize every ingenuity and means to outwit the Government
agencies bent on recapturing him. For all this, the Government extends to him
866
a sort of condonation or amnesty." (Infante vs. Provincial Warden, 92 Phil.
310, 325, Concurring and Dissenting Opinion of Montemayor, J.)
867
Chapter Two PARTIAL EXTINCTION OF
CRIMINAL LIABILITY
Art. 94. Partial extinction of criminal liability. — Criminal liability is

extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and

3. For good conduct allowances w h i c h the culprit may earn
while he is serving his sentence.
Nature of conditional pardon.

Conditional pardon delivered and accepted is considered a contract
between the sovereign power of the executive and the convict that the former
will release the latter upon compliance with the condition.
Usual condition imposed upon the convict in conditional

pardon.
In conditional pardon, the condition usually imposed upon the convict is
that "he shall not again violate any of the penal laws of the Philippines."
Commutation of sentence.
It is a change of the decision of the court made by the Chief Executive by
reducing the degree of the penalty inflicted upon the convict, or by decreasing
the length ofthe imprisonment or the amount of the fine.
867
Art. 94 PARTIAL EXTINCTION OF CRIMINAL LIABILITY
Specific cases where commutation is provided for by the

Code.
1. When the convict sentenced to death is over 70 years of age. (Art.
83)
2. When eight justices of the Supreme Court fail to reach a decision
for the affirmance of the death penalty.
In either case, the degree of the penalty is reduced from death to
reclusion perpetua.
In commutation of sentence, consent ofthe offender is not necessary. The
public welfare, not his consent, determines what shall be done. (Biddle vs.
Perovich, 274 U.S. 480)
For good conduct allowances.

Allowances for good conduct are deductions from the term of the
sentence for good behavior. (Art. 97)
This is different from that provided in Art. 29 which is an extraordinary
reduction of full time or four-fifths of the preventive imprisonment from the
term of the sentence.
A prisoner is also entitled to special time allowance for loyalty. (Art. 98)
A deduction of 1/5 of the period of his sentence is granted to a loyal prisoner.
(See Art. 158.)
Parole should be added as No. 4 in the enumeration of

causes of partial extinction of criminal liability.
The parole granted to a convict by the Parole Board should be added. A
parole may be granted to a prisoner after serving the minimum penalty under
the Indeterminate Sentence Law.
Definition of parole.
Parole consists in the suspension of the sentence of a convict after
serving the minimum term of the indeterminate penalty, without granting a
pardon, prescribing the terms upon which the sentence shall be suspended.
If the convict fails to observe the conditions of the parole, the

Board of Pardons and Parole is authorized to direct his arrest and
CONDITIONAL PARDON Art. 95
return to custody and thereafter to carry out his sentence without deduction
ofthe time that has elapsed between the date ofthe parole and the subsequent
arrest.
Is conviction necessary to revoke parole?
869
The mere commission, not conviction by the court, of any crime is
sufficient to warrant parolee's arrest and reincarceration. (Guevara)
In a petition for habeas corpus, it was contended that the recommitment
order was premature, because it came down before his convictions of the
series of estafa committed by him during the period of the parole. It was held
that it was now rather academic, even assuming that final conviction is
necessary in order to constitute a violation of the condition ofthe parole.
(Fortunato vs. Director, 80 Phil. 187, 189)
Conditional pardon distinguished from parole.

1. Conditional pardon, which may be given at any time after final
judgment, is granted by the Chief Executive under the provisions of the
Administrative Code; parole, which may be given after the prisoner has
served the minimum penalty, is granted by the Board of Pardons and
Parole under the provision of the Indeterminate Sentence Law.
2. For violation of the conditional pardon, the convict may be ordered
rearrested or reincarcerated by the Chief Executive, or may be
prosecuted under Art. 159 of the Code; for violation of the terms of the
parole, the convict cannot be prosecuted under Art. 159. He can be
rearrested and reincarcerated to serve the unserved portion of his
original penalty.
Art. 95. Obligation incurred by a person granted conditional pardon. —

Any person w h o has been granted conditional pardon shall incur the
obligation of complying strictly with the conditions imposed therein,
otherwise, his noncompliance with any of the conditions specified shall result
in the revocation of the pardon and the provisions of Article 159 shall be
applied to him.
Art. 96 COMMUTATION OF SENTENCE

1. He must comply strictly with the conditions imposed in the pardon.
2. Failure to comply with the conditions shall result in the revocation of
the pardon. Under Sec. 64(i), R.A.C., the Chief Executive may order his
arrest and reincarceration. (People vs. Aglahi, 61 Phil. 233, 235)
3. He becomes liable under Art. 159. This is the judicial remedy.
870
Condition of pardon is limited to the unserved portion of
the sentence, unless an intention to extend it beyond that
time is manifest.
The duration of the conditions subsequent, annexed to a pardon, would
be limited to the period of the prisoner's sentence, unless an intention to
extend it beyond the term of his sentence was manifest from the nature of the
condition or the language in which it was imposed. (Infante vs. Warden, 92
Phil. 310, 314)
Illustration:
Thus, if a convict was sentenced to 12 years and 1 day of reclusidn
temporal, as the maximum term of the indeterminate penalty, and after
serving 5 years he was granted a conditional pardon, the condition being that
he should not commit any crime in the future, that condition must be complied
with by him until the end of the 7 years from the grant of the conditional
pardon, it being the unserved portion of his sentence. If he commits a crime
after the expiration of the 7 years, he is not liable for violation of the
conditional pardon. The condition of the pardon is no longer operative when
he commits a new offense.
But if he commits a crime before the expiration of the 7 years, he is
liable for violation of the conditional pardon.
Art. 96. Effect of commutation ofsentence. — The commutation of the

original sentence for another of a different length and nature shall have the
legal effect of substituting the latter in the place of the former.
ALLOWANCE FOR GOOD CONDUCT Art. 97
Art. 97. Allowance for good conduct. — The good conduct of any
prisoner in any penal institution shall entitle him to the following deductions
from the period of his sentence:
1. During the first two years of imprisonment, he shall be allowed a
deduction of five days for each month of good behavior;
2. During the third to the fifth year, inclusive, of his imprisonment, he
shall be allowed a deduction of eight days for each month of good behavior;
3. During the following years until the tenth year, inclusive, of his
imprisonment, he shall be allowed a deduction of ten days for e a c h m o n t h
of good behavior; and
871
4. During the eleventh and successive years of his imprisonment, he shall
be allowed a deduction of fifteen days for each month of good behavior.
Application of the provisions of Art. 97.

The release of appellee Tan by the provincial warden, after an
imprisonment of only 2 years, 8 months and 21 days, was premature. Under
paragraph No. 1, Article 97 ofthe Revised Penal Code, he may be allowed a
deduction of five (5) days for each month of good behavior during his first two
years of imprisonment, which would be 24 months multiplied by 5, or 120
days; under paragraph No. 2, he may be allowed a deduction of eight (8) days
a month for the next three years. For the balance of eight (8) months,
multiplied by 8, we have 64 days; so that the total credit for good behavior
would be 184 days, equivalent to 6 months and 4 days. The prisoner's actual
confinement of 2 years, 8 months and 21 days, plus his possible total credit of 6
months and 4 days, would give the result of 3 years, 2 months and 25 days.
Since the maximum term of his sentence is 4 years and 2 months, appellee Tan
has an unserved portion of 11 months and 5 days. (People vs. Tan, No. L-
21805, Feb. 25, 1967, 19 SCRA 433, 437)
No allowance for good conduct while prisoner is released

under conditional pardon.
The reason is that the good conduct time allowance is given in
consideration of the good conduct observed by the prisoner while Art. 98
ALLOWANCE FOR LOYALTY
serving his sentence. In this case, the accused was enjoying liberty under a
conditional pardon. He was not serving the remitted penalty
in prison. (People vs. Martin, 68 Phil. 122, 125)
By a consideration of the terms of Article 97 alone, and also in
conjunction with other parts of the Revised Penal Code, the phrase "any
prisoner" in Article 97 thereof is to be regarded as referring only to a prisoner
serving sentence. (Baking vs. Director of Prisons, No.
L-30603, July 28, 1969, 28 SCRA 851, 860)
Art. 98. Special time allowance for loyalty. — A deduction of one fifth of
the period of his sentence shall be granted to any prisoner who, having evaded
the service of his sentence under the circumstances mentioned in Article 158 of
this Code, gives himself up to the authorities within 48 hours following the
872
issuance of a proclamation announcing the passing away of the calamity or
catastrophe referred to in said article.
What is special time allowance for loyalty of prisoner?

It is a deduction of 1/5 of the period ofthe sentence of a prisoner who,
having evaded the service of his sentence during the calamity or catastrophe
mentioned in Art. 158, gives himself up to the authorities within 48 hours
following the issuance ofthe proclamation by the President announcing the
passing away of the calamity or catastrophe.
The deduction of one-fifth is based on the original

sentence.
While this article mentions "the period of his sentence," it should be
understood that the convict is to be credited for loyalty with 1/5 of his original
sentence, not of the unexpired portion of his sentence.
Art. 158 provides for increased penalty.

Under Art. 158, a convict who evaded the service of his sentence by
leaving the penal institution where he had been confined, on the occasion of
disorder resulting from a conflagration, earthquake, explosion or similar
catastrophe or during a mutiny in which he did WHO GRANTS TIME
ALLOWANCE Art. 99
not participate, is liable to an increased penalty (1/5 of the time still remaining
to be served — not to exceed 6 months), if he fails to give himself up to the
authorities within forty-eight hours following the issuance of a proclamation
by the Chief Executive announcing the passing away of the calamity.
Art. 99. Who grants time allowance. — Whenever lawfully justified, the
Director of Prisons shall grant allowances for good conduct. S u c h allowances
once granted shall not be revoked.
The allowance for good conduct is not an automatic right. It must be

granted by the Director of Prisons.
873
Allowances for good conduct once granted by the Director of Prisons
cannot be revoked by him.
The authority to grant time allowance is exclusively vested

in the Director.
There is no justification for the provincial warden's usurping the
authority ofthe Director of Prisons in crediting the prisoner with good conduct
time allowance. Such authority is exclusively vested in the Director. (People vs.
Tan, G.R. No. L-21805, Feb. 25,1967,19 SCRA
433,437)
874
Title Five
CIVIL LIABILITY
Chapter One PERSONS CIVILLY LIABLE FOR

FELONIES
As a general rule, an offense causes two classes of injuries:

1. Social injury, produced by the disturbance and alarm which are the
outcome of the offense.
2 Personal injury, caused to the victim ofthe crime who may have
suffered damage, either to his person, to his property, to his honor,
or to her chastity.
The social injury is sought to be repaired through the imposition of the
corresponding penalty; while the personal injury, through indemnity, which is
civil in nature.
Art. 100. Civil liability of a person guilty of felony. — Every person

criminally liable for a felony is also civilly liable.
Civil liability arising from offenses.

Every person who, contrary to law, wilfully or negligently causes
damage to another, shall indemnify the latter for the same. (Article 20, New
Civil Code)
Civil obligations arising from criminal offenses shall be governed by the
penal laws. (Article 1161, New Civil Code)
The civil liability arising from negligence under the Revised Penal Code
is entirely separate and distinct from the responsibility for fault or negligence
called a quasi-delict. (Article 2176, New Civil
874
Art. 100 CIVIL LIABILITY
Code) But the party claiming payment for the damage done cannot recover
twice for the same act .or omission of the defendant. (Article 2177, New Civil
Code)
Thus, if A was convicted of serious physical injuries through negligence
under the Revised Penal Code, and B, the injured party, was indemnified in
the criminal case for the damages caused to him, the latter cannot recover
damages in a separate civil action for the same act or omission of A.
Civil liability under the Revised Penal Code includes (1) restitution, (2)
reparation of the damage caused, and (3) indemnification for consequential
damages. (Article 104, Revised Penal Code)
Basis of civil liability.

Underlying the legal principle that a person who is criminally liable is
also civilly liable is the view that from the standpoint of its effects, a crime has
dual character: (1) as an offense against the state because of the disturbance
ofthe social order; and (2) as an offense against the private person injured by
the crime unless it involves the crime of treason, rebellion, espionage,
contempt and others wherein no civil liability arises on the part of the offender
either because there are no damages to be compensated or there is no private
person injured by the crime. In the ultimate analysis, what gives rise to the
civil liability is really the obligation of everyone to repair or to make whole the
damage caused to another by reason of his act or omission, whether done
intentionally or negligently and whether or not punishable by law. (Occena vs.
Icamina, G.R. No. 82146, Jan. 22, 1990, 181 SCRA
328, 333)
Damages that may be recovered in criminal cases.

In crimes against property, damages based on the price of the thing and
its special sentimental value to the injured party may be recovered, if the thing
itself cannot be restored. (Article 106, in relation to Article 105, Revised Penal
Code)
In crimes against persons, like the crime of physical injuries, the
injured party is entitled to be paid for whatever he spent for the treatment of
his wounds, doctor's fees, and for medicine, as well as the salary or wages
unearned by him because of his inability to work due to his injuries.
Damages may also be recovered for loss or impairment of earning
capacity in cases of temporary or permanent personal injury. (Article
2205, new Civil Code)
876
CIVIL LIABILITY Art. 100
Moral damages may be recovered in a criminal offense resulting in

physical injuries, in the crimes of seduction, abduction, rape or other
lascivious acts, adultery or concubinage, illegal or arbitrary detention or
arrest, illegal search, libel, slander or any other form of defamation, and in
malicious prosecution. (Article 2219, new Civil
Code)
Exemplary damages as a part of the civil liability may be imposed when
the crime was committed with one or more aggravating circumstances.
(Article 2230, new Civil Code)
Damages for death caused by a crime have been raised to P50.000.00
(People vs. Ravelo, G.R. Nos. 78781-82, Oct. 15, 1992,
202 SCRA 655, 673 [Murder]; People vs. Velaga, Jr., G.R. No. 87202, July 23,
1991, 199 SCRA 518, 524 [Homicide]); and in addition:
(1) The defendant shall be liable for the loss of the earning capacity of
the deceased, unless the deceased, on account of permanent
physical disability not caused by the defendant, had no earning
capacity;
(2) He shall be liable to give support if the deceased was obliged to give
support under Article 291 ofthe new Civil Code, to one not an heir
of the deceased;
(3) He shall pay moral damages for mental anguish to the spouse,
legitimate and illegitimate descendants and ascendants. (Article
2206, New Civil Code)
But if there is no damage caused by the commission of the

crime, the offender is not civilly liable.
Thus, if the felony committed could not or did not cause any damage to
another, the offender is not civilly liable even if he is criminally liable for the
felony committed.
Example: A slapped the face of the mayor who was then in the
performance of his duty. Under Art. 148, the crime committed is direct
assault. As the slapping did not cause any injury to the mayor, A is not civilly
liable.
A person criminally liable for a felony is also civilly liable.

Every person criminally liable is also civilly liable. Civil liability arising
from crimes (ex delicto) shall be governed by the penal laws, sub-
877
ject to the provisions of Arts. 29 to 35,2176,2177, and 2202,2204,2206, 2216,

2230, 2233, and 2234 (regulating damages) ofthe Civil Code and to the
provisions of Rule 111, Revised Rules of Criminal Procedure.
Since a person criminally liable is also civilly liable, does

his acquittal in a criminal case mean extinction of his civil
liability?
The Revised Penal Code is silent on this point. But the Revised Rules of
Criminal Procedure provide:
"The extinction of the penal action does not carry with it extinction of
the civil. However, the civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment in the criminal action that
the act or omission from which the civil liability may arise did not exist." (Sec.
2, par. 4, Rule III, Revised Rules of
Criminal Procedure)
Thus, the dismissal of the information or the criminal action does not
affect the right of the offended party to institute or continue the civil action
already instituted arising from the offense, because such dismissal or
extinction of the penal action does not carry with it the extinction ofthe civil
one. (People vs. Velez, 77 Phil. 1027) In this case, there was a pending separate
civil action, arising out of the same offense, filed by the offended party against
the same defendant.
Though the death of an accused-appellant during the pendency of an
appeal extinguished his criminal liability, his civil liability survives. Extinction
of criminal liability does not necessarily mean that the civil liability is also
extinguished. Only the criminal liability, including the fine, which is
pecuniary, but not civil, of the accused is extinguished by his death, but the
civil liability remains. (Petralba vs. Sandiganbayan, G.R. No. 81337, Aug. 16,
1991, 200 SCRA 644, 649-650, citing People vs. Navoa, 132 SCRA 410 and
People vs. Sendaydiego, 81 SCRA 120)
Civil liability may exist, although the accused is not held

criminally liable, in the following cases:
1. Acquittal on reasonable doubt. — When the accused in a criminal
prosecution is acquitted on the ground that his guilt has not been proved
beyond reasonable doubt, a civil action for damages for the same act or
omission may be
instituted. (Art. 29, Civil Code)
878
Award in judgment of acquittal.

The court may acquit an accused on reasonable doubt and still
order payment of civil damages already proved in the same case without
need for a separate civil action. The reason is the accused has been
accorded due process. To require a separate civil action would mean
needless clogging of court dockets and unnecessary duplication of
litigation with all its attendant loss of time, effort and money on the part
of all concerned. (Maximo vs. Gerochi, Jr., Nos. L-47994-97, Sept. 24,
1986, 144 SCRA 326, 329, citing Padilla vs. Court of Appeals [129 SCRA
558])
2. Acquittal from a cause of nonimputability. — The exemption from

criminal liability in favor of an imbecile or insane person, and a person
under fifteen years of age, or one over fifteen but under eighteen years of
age, who has acted without discernment, and those acting under the
compulsion of an irresistible force or under the impulse of an
uncontrollable fear of an equal or greater injury, does not include
exemption from civil liability. (Art. 101, Revised Penal Code)
3. Acquittal in the criminal action for negligence does not preclude the
offended party from filing a civil action to recover damages, based on the
new theory that the act is a quasi-delict. (Art. 2177, Civil Code)
4. When there is only civil responsibility. — When the court finds and so
states in its judgment that there is only civil responsibility, and not
criminal responsibility, and that this finding is the cause of acquittal. (De
Guzman vs. Alva, 51 O.G. 1311)
5. In cases of independent civil actions. (Arts. 31, 32, 33, and 34, Civil Code)
PROSECUTION OF CIVIL ACTION ARISING FROM
CRIME
Provisions of the Revised Rules of Criminal Procedure

(Rule 111) on the prosecution of civil action arising from
offenses:
Institution of criminal and civil actions. — (a) When a criminal action is
instituted, the civil action for the recovery of civil liability arising from the
offense charged shall be deemed instituted with
the criminal action unless the offended party waives the civil action, reserves
the right to institute it separately, or institutes the civil action prior to the
criminal action. (Sec. l[a], 1st par.)
879
The criminal action for violation of Batas Pambansa Big. 22 shall be

deemed to include the corresponding civil action. No reservation to file such
civil action shall be allowed. (Sec. l[b], 1st par.)
When civil action may proceed independently. — In the cases provided for
in Articles 32, 33, 34 and 2176 ofthe Civil Code ofthe Philippines, the
independent civil action may be brought by the offended party. It shall
proceed independently ofthe criminal action and shall require only a
preponderance of evidence. In no case, however, may the offended party
recover damages twice for the same act or omission charged in the criminal
action. (Sec. 3)
When separate civil action is suspended. —

(a) After the criminal action has been commenced, the separate civil
action arising therefrom cannot be instituted until final judgment
has been rendered in the criminal action;
(b) If the criminal action is filed after the said civil action has already
been instituted, the latter shall be suspended in whatever stage it
may be found before judgment on the merits. The suspension shall
last until final judgment is rendered in the criminal action.
Nevertheless, before
judgment on the merits is rendered in the civil action, the same
may, upon motion of the offended party, be consolidated with the
criminal action in the court trying the criminal action. In case of
consolidation, the evidence already adduced in the civil action
shall be deemed automatically reproduced in the criminal action
without prejudice to the right of the prosecution to cross-
examine the witnesses presented by the offended party in the
criminal case and of the parties to present additional evidence.
The consolidated criminal and civil actions shall be tried and
decided jointly. (Sec. 2)
Judgment in civil action not a bar. — A final judgment rendered in a civil
action absolving the defendant from civil liability is not bar to a criminal
action against the defendant for the same act or omission subject of the civil
action. (Sec. 5)
Suspension by reason of prejudicial question. — A petition for suspension
of the criminal action based upon the pendency of a prejudicial question in a
civil action may be filed in the office of the prosecutor or the court conducting
the preliminary investigation. When the criminal action has been filed in court
880
for trial, the petition to suspend shall be filed in the same criminal action at
any time before the prosecution rests. (Sec. 6)
Exception to the rule that extinction of the criminal action

does not extinguish civil action.
The civil action reserved by the complainant during the prosecution of
the criminal action will be allowed after the termination of the criminal
proceedings, only when he has the right thereto, that is to say, when the
judgment rendered is one of conviction, or, in case the accused is acquitted,
the complaint is based on some other fact or ground different from the
criminal act. For instance, a defendant was charged with the crime of estafa
thru falsification of commercial documents. The court acquitted him from the
charge on the ground that money had been received or retained by him
pursuant to an arrangement between the latter and the offended party, and
that the liability of the defendant for the return of the amount so received
arises from a civil contract, not from a criminal act, and may not be enforced
in the criminal case. (People vs. Miranda, No. L-17389, Aug. 31, 1962, 5 SCRA
1067, 1068-1069)
Since the court acquitted the accused on the ground that the money had
been received or retained by appellant pursuant to an arrangement between
the latter and the offended party, in order to conceal the transaction from the
other offended party, it was improper and unwarranted to impose a civil
liability in the same criminal action. The liability ofthe defendant for the
return ofthe amount so received arises from a civil contract, not from a
criminal act, and may not be enforced in the criminal case but in a separate
civil action. (People vs. Miranda, supra; People vs. Pantig, 51 O.G. 5627)
In People vs. Lagman, 70 O.G. 4671, where the complainant appealed,
through her private prosecutor, from the decision of the lower court,
acquitting the accused on the ground of reasonable doubt, the Court of
Appeals held:
"With respect to the award of damages in favor of the
complainant, the rule is that in a criminal case, the accused is civilly
liable only if he is found guilty. But not if he is declared innocent. In the
case before us, the accused was acquitted ofthe crime charged.
Therefore, the award of damages in favor of the complainant should be
set aside."
The ruling is erroneous for two reasons: (1) under Article 29 of the new
Civil Code, when the accused in a criminal prosecution is acquitted on the
ground that his guilt was not proved beyond reasonable doubt, a civil action
881
for damages for the same act or omission may be instituted; and (2) according
to Section 2(b), Rule 111 of the Rules of Court, extinction of the penal action
does not carry with it extinction of the civil, and in that case the lower court
did not make any declaration that the fact from which the civil may arise did
not exist.
Commencement of criminal action not a condition

precedent to the filing and prosecution of civil action
arising from crime.
The Revised Rules of Criminal Procedure permit the institution of a
civil action to demand civil responsibility arising from crime before the
institution of the criminal prosecution.
A contrary doctrine would render the right of the injured party to
indemnity a myth, and justice a farce, for the guilty party would be able to
dispose of his property. (Alba vs. Acufia, 53 Phil. 380, 387)
But the civil action arising from crime cannot be instituted or prosecuted in the
following cases:
1. After the criminal action has been commenced, the separate civil
action arising therefrom cannot be instituted until final judgment
has been entered in the criminal action. (Sec. 2, Rule 111, Revised
2. If the criminal action is filed after the said civil action has already
been instituted, the latter shall be suspended in whatever stage it
may be found before judgment on the merits. The suspension
shall last until final judgment is rendered in the ciminal action.
(Sec. 2[a], Rule 111, Revised
The rule which requires the suspension ofthe civil case after
the criminal action has been commenced, refers to the
commencement of the criminal action in court and not to the mere
filing of a complaint with the prosecuting officer.
(Coquia, et al. vs. Cheong, et al, [Unrep.] 103 Phil. 1170)
Judgment in the civil case already promulgated cannot be

suspended by the filing of criminal action.
The provision of Section 2 of Rule 111, Rules of Court, that "after a
criminal action has been commenced, no civil action arising from the same
882
offense can be prosecuted, and the same shall be suspended, in whatever stage
it may be found, until final judgment in the criminal proceeding has been
rendered" does not contemplate the suspension of a judgment already
promulgated in a civil action by the filing of a criminal complaint with the
prosecution attorney charging the winning party with having introduced false
documentary evidence. (See Tanda vs. Aldaya, 89 Phil. 497, 504)
Sec. 2 of Rule 111 applies only (1) when the claimant in the
civil action is the offended party in the criminal action and
(2) both cases arise from the same offense.
Section 2 of Rule 111, Rules of Court (now Revised Rules of
Criminal Procedure), requiring the suspension ofthe civil action in view ofthe
commencement of the criminal action applies only when the claimant in the
civil action is the same offended party in the criminal action and both cases
arise from the same offense or transaction. (See
Belleza vs. Huntington, 89 Phil. 689, 695) (Sec. 3[b], now Sec. 2[a], of
Rule 111, was Sec. 1 of Rule 107 then])
Thus, if in the civil case, the plaintiff is the accused in the criminal case
and the defendant in that civil case is the offended party in the criminal case,
the counterclaim covering not only the sum of r*24,000 advanced to the
plaintiff to purchase jute bags but also the sum of f*171,000 as damages which
the defendant claims to have sustained, and the information in the criminal
case being merely confined to the former sum (f*24,000) the claimant
(plaintiff) is not the offended party in the criminal case and both cases do not
arise from the same transaction. (Belleza vs. Huntington, supra)
The rule that a civil action shall be suspended until final judgment is
rendered in criminal case, applies when the civil action arises from the offense
charged in the criminal case. (Alerta, et al. vs. Mendoza, et al, XIV L.J. 528)
Sec. 2(a) of Rule 111 applies only to civil liability arising

from crime.
Thus, when the cause of action in the civil case is based on culpa
contractual and not on the civil liability arising from the offense involved in
the criminal case, Sec. 2(a) (Sec. 1, Rule 107, then 3[b], Rule 111) of Rule 111,
Rules of Court, does not apply and the trial court erred in suspending the
hearing of the civil case until the final determination ofthe criminal case. Sec.
2(a) of Rule 111 contemplates a case where the offended party desires to press
his right to demand indemnity from the accused in the criminal case which he
may assert either in the same criminal case or in a separate civil action. (See
883
Parker vs. Panlilio, 91 Phil. 1, 4)

Culpa contractual is the basis of a civil action against a transportation
company, for instance, for its failure to carry safely its passenger to his
destination. The obligation to pay for damages arises from contract, and not
from crime.
Allegations of damages in information not necessary.

The court may sentence the accused to pay the offended party, moral
and material damages, even if there is no specific allegation of such damages
in the information, provided the offended party has not expressly waived such
liability or reserved his right to have civil damages determined in a separate
civil action. (People vs. Vigo, C.A.,
52 O.G. 7629; People vs. Soldevilla, 49 O.G. 2857; People vs. Gerodias, 51
O.G. 4614)
Under Art. 100 of this Code, when an information or complaint is filed,
even without any allegation of damages and the intention to prove and claim
them, it is to be understood that the offender is
liable for them. (People vs. Celorico, G.R. No. 45738, VII L.J., p. 403; People
vs. Oraza, 83 Phil. 633, 636)
Civil liability ofthe accused extends in favor of persons not mentioned in the
information.
In criminal cases where the intervention of the aggrieved parties is
limited to being witnesses for the prosecution, the civil liability of the accused
should not extend only in favor of the person or persons mentioned in the
information. Unless the record shows that an omitted party has waived the
civil liability or has reserved the right to file a separate civil action to recover
the same, such party's right to the civil liability arising from the offense is
impliedly included in the criminal action. (People vs. Despavellador, 53 O.G.
7297)
Attachment in criminal cases.

When the civil action is properly instituted in the criminal action as
provided in Rule 111 the offended party may have the property of the accused
attached as security for the satisfaction of any judgment that may be
recovered from the accused in the following cases:
(a) When the accused is about to abscond rrom the Philip-

pines;
884
(b) When the criminal action is based on a claim for money or

property embezzled or fraudulently misapplied or converted to
the use of the accused who is a public officer, officer of a
corporation, attorney, factor, broker, agent, or clerk, in the course
of his employment as such, or by any other person in a fiduciary
capacity, or for a willful violation of duty;
(c) When the accused has concealed, removed, or disposed of his
personal property, or is about to do so;
(d) When the accused resides outside the Philippines. (Sec. 2, Rule
127, Revised Rules of Criminal Procedure)
Writ of attachment, etc. may be issued in criminal cases.

Within the criminal action, with which the civil action is impliedly
instituted, the offended party may obtain the preliminary writ of attachment.
The court in which the civil action is pending is, after the filing of the
information in the criminal case, not ipso facto deprived of the power to issue
preliminary and auxiliary writs, such as preliminary injunction, attachment,
appointment of receiver, fixing amounts of bonds, and other processes of
similar nature, which do not go into the merits of the case. (Ramcar, Inc. vs.
De Leon, 78 Phil. 449, 452-453; Babala vs. Abano, 90 Phil. 827, 828-829)
Availability of provisional remedies. — The provisional remedies in civil
actions insofar as they are applicable may be availed of in connection with
civil action deemed instituted with the criminal action. (Sec. 1, Rule 127,
Revised Rules of Criminal Procedure)
From the judgment of conviction in criminal case, two appeals may be taken.
Every criminal case involves two actions: one criminal and another civil.
From a judgment of conviction, two appeals may, accordingly, be taken. The
accused may seek a review of said judgment as regards both actions. Similarly,
the complainant may appeal with respect only to the civil action. The right of
either to appeal or not to
appeal is not dependent upon the other. (People vs. Coloma, [Unrep.] 105 Phil.
1287)
Remedy of offended party where fiscal asks for dismissal.

If the criminal action is dismissed by the court on motion of the fiscal
upon the ground of insufficiency of evidence, the offended party has no right
to appeal, his remedy being a separate civil action after proper reservation is
made therefor. (People vs. Lipana, 72 Phil. 166,
885
170)
The reason for the rule is that the continuation of the offended party's
intervention in a criminal action depends upon the continuation of such action
by the provincial fiscal. Once the criminal action is dismissed by the trial court
on petition of the provincial fiscal, the offended party's right to intervene
ceases, and he cannot appeal from the order of dismissal, otherwise it "would
be tantamount to giving
said offended party the direction and control of the criminal proceeding."
(People vs. Lipana, supra)
But the offended party may rightly intervene by interposing an appeal
from the order dismissing the action upon a question of law. (People vs.
Maceda, 73 Phil. 679, 681)
Right to appeal as to civil liability.
When the court found the accused guilty of criminal negligence, but
failed to enter judgment of civil liability, the private prosecutor has a right to
appeal for purposes of the civil liability of the accused. The appellate court
may remand the case to the trial court for the latter to include in its judgment,
the civil liability of the accused.
(People vs. Ursua, 60 Phil. 252, 254-255)
Offended party has right to be heard during the appeal.

When a judgment convicting the accused is appealed, the offended party
has the right to be heard during the appeal. If the Solicitor General asks for
the reversal ofthe appealed judgment and the acquittal of the accused, the
offended party has also the right to be heard. (People vs. Villegas, G.R. No.
45039, C.A., IV L.J. 635)
Civil liability may be added within the 15-day period, even if the convict has
started serving sentence.
Before the expiration of the 15-day period for appealing, the trial court
can amend the judgment of conviction by adding a provision for the civil
liability of the accused, and this notwithstanding that the judgment became
final because the accused had commenced the service of his sentence. (People
vs. Rodriguez, 97 Phil. 349,
351)
886
This ruling applies even though an appeal from the judgment of

conviction has already been perfected. (People vs. Co Ko Tong, C.A., 51 O.G.
6337)
But after the 15-day period for appealing, the trial court cannot amend
its decision by adding thereto the civil liability. (Sese vs. Montesa, 87 Phil. 245,
247)
An independent civil action may be brought by the injured

party during the pendency of the criminal case, provided
the right is reserved.
In the cases provided in Articles 31, 32, 33, 34 and 2176 of the Civil
Code, the independent civil action may be brought by the offended party. It
shall proceed independently ofthe criminal action, and shall require only a
preponderance of evidence. In no case, however, may the offended party
recover damages twice for the same act or omission charged in the criminal
action. (Sec. 3, Rule 111, Revised Rules of Criminal Procedure)
Reservation of the right to institute separate civil action is necessary in the

following cases:
1. In any of the cases referred to in Art. 32, Civil Code.
2. In cases of defamation, fraud, and physical injuries.

The words "defamation," "fraud" and "physical injuries" are
used in their ordinary sense. The term "physical injuries" means bodily
injury, not the crime of physical injuries. It includes attempted
homicide, frustrated homicide, or even death. (Carandang vs. Hon.
Vicente Santiago, 97 Phil. 94,96-97) Estafa is included in the term
"fraud."
Where fraud is the basis for both the civil and the criminal
actions, they are, according to law, to proceed independently. In the
same way that the civil suit can be tried, the criminal prosecution has to
run its course. (Rojas vs. People, No. L-22237, May 31, 1974, 57 SCRA
243, 249)
3. When the civil action is against a member of a city or municipal police
force for refusing or failing to render aid or protection to any person in
case of danger to life or property. Such peace officer shall be primarily
liable for damages, and the city or municipality shall be subsidiarily
responsible therefor. (Art. 34, Civil Code)
887
4. In an action for damages arising from fault or negligence, there being no

pre-existing contractual relation between the parties (quasi-delict). (Art.
2176, Civil Code)
Responsibility for such fault or negligence is entirely separate and
distinct from the civil liability arising from negligence under the Penal
Code. But the plaintiff cannot recover damages twice for the same act or
omission of the defendant. (Art. 2177,
Civil Code)
The purpose of the reservation is to prevent the matter from
becoming res adjudicata. (Philippine Railway Co. vs. Jalandoni, C.A.,
40 O.G. 19, Supp. 11)
Effect of reservation of right to intervene in prosecution

of criminal case.
Once the offended party has reserved his right to institute a separate
civil action to recover indemnity, he thereby loses his right to intervene in the
prosecution of the criminal case. Consequently, appellant no longer had any
right to move for the reconsideration of, much less to appeal from the decision
in the criminal case, insofar as it decided the question of civil indemnity, for
appellant no longer had any standing in the case. (Tactaquin vs. Palileo, No. L-
20865,
Dec. 29, 1967, 21 SCRA 1431, 1434)
Article 33 of the Civil Code has modified the provisions of Rule 107,
Rules of Court. Under said article, a civil action to recover damages for
physical injuries, distinct and separate from the criminal action and of which
it shall proceed independently, may be brought by the injured party; hence,
the right to file said complaint for damages need not even be reserved.
(Alvarez vs. Manalaysay, et al., C.A., 57
O.G. 6629)
If the offended party in the criminal case is represented by

a private prosecutor, he cannot file an independent civil
action.
If the offended party elected to claim the civil liability in the criminal
case by intervening therein through a private prosecutor and the court did not
award any civil liability because the offended party did not present evidence,
he cannot thereafter file an independent civil action for said civil liability. The
888
matter is already res judicata in the criminal case. (Roa vs. De la Cruz, 107
Phil. 8, 12-13)
When the accused pleaded guilty during the arraignment, so that the offended
party could not have expressly renounced his right to file the civil action or
reserved the same, can the latter subsequently file a civil action for indemnity for
physical and moral damages caused by the accused?
The mere appearance of a private prosecutor in the criminal case does

not necessarily constitute such intervention on the part of the aggrieved party
as could only import an intention to press claim for damages in said criminal
case and a waiver of the right to file a separate civil action for damages, where
the accused had pleaded guilty upon arraignment and was immediately
sentenced, there being no chance for the aggrieved party to present evidence
in support of the claim for damages and to enter a reservation in the record to
file a separate civil action. (Reyes vs. Sempio-Diy, No. L-71914, Jan. 29,
1986, 141 SCRA 208, 212-213)
When the final judgment in a criminal case does not state

"that the fact from which the civil might arise did not
exist," extinction of the penal action does not carry with it
extinction of the civil.
The extinction of the penal action does not carry with it extinction ofthe
civil action. However, the civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment in the criminal action that
the act or omission from which the civil liability may arise did not exist. (Sec.
2[4th par.], Rule 111, Revised Rules of
Criminal Procedure)
When the accused in a criminal case for estafa (Art. 315, l[b], R.P.C.)
was acquitted because there was no conversion or misappropriation, an
element of the crime, but the evidence shows that she really received the
jewelry, then the civil action is not extinguished. (Laperal vs. Alvia, 51 O.G.
1311)
But if in a criminal case for arson, the court states in its judgment of
acquittal that "the accused cannot in any manner be held responsible for the
fire," such declaration fits well into the exception of the rule and actually
exonerates the accused from civil liability. (Tan vs. Standard Vacuum Oil Co.,
et al., 91 Phil. 672, 675)
889
The question is whether or not appellants may still recover damages

from Priela, considering that he has been explicitly acquitted by the trial
court, upon the ground that "he has not been remiss in his caution nor in his
presence of mind trying to avoid" said "freak accident." Held: Pursuant to the
Rules of Court: "Extinction of the penal action does not carry with it
extinction of the civil, unless the extinction proceeds from a declaration in a
final judgment that the fact from which the civil might arise did not exist." In
the case at bar, the decision appealed from has not only acquitted Priela; but
also, declared that the collision, which resulted in the destruction of
appellants' car, had not been due to any negligence on his part. Since
appellants' civil action is predicated upon Priela's alleged negligence, which
does not exist, according to said final judgment, it follows necessarily that his
acquittal in the criminal action carries with it the extinction of the civil
responsibility arising therefrom. (Faraon
vs. Priela, G.R. No. L-23129, August 2, 1968, 24 SCRA 582, 583)
Prejudicial question.
This is another exception to the rule that the criminal action shall be
decided first and that the civil action should be suspended.
Prejudicial questions must be decided before any criminal prosecution
may be instituted or may proceed. (Art. 36, new Civil
Code)
A petition for the suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action, may be filed in the office of
the prosecutor or the court conducting the preliminary investigation. When
the criminal action has been filed in court for trial, the petition to suspend
shall be filed in the same criminal action at any time before the prosecution
rests. (Sec. 6, Rule 111, Revised
For the principle on prejudicial question to apply, it is essential that
there be two cases involved, invariably a civil case and a criminal case. If the
two cases are both civil or if they are both criminal, the principle finds no
application. (Malvar vs. Cruz, 14 C.A. Rep. [2s] 395 [Syllabus])
Prejudicial question defined.

A prejudicial question is one which arises in a case, the resolution of
which is a logical antecedent of the issue involved in said case, and the
cognizance of which pertains to another tribunal. (Jimenez vs. Averia, No. L-
890
22759, March 29,1968, 22 SCRA 1380,1382, citing Encyclopedia Juridical

Espanola, p. 228)
It is based on a fact distinct and separate from the crime but so
intimately connected with it that it determines the guilt or innocence ofthe
accused.
Elements of prejudicial question.

The two essential elements of a prejudicial question are: (a) the civil
action involves an issue similar or intimately related to the issue raised in the
criminal action; and (b) the resolution of such issue determines whether or not
the criminal action may proceed. (Sec. 5,
Rule 111, Rules of Court)
1. The prejudicial question must be determinative ofthe case before
the court;
2. Jurisdiction to try said question must be lodged in another
tribunal. (People vs. Aragon, 94 Phil. 357; Rojas vs. People, 57
SCRA 243)
Venue of the actions.

Spanish jurisprudence, from which the principle of prejudicial question
has been taken, requires that the essential element determinative of the
criminal action must be cognizable by another court. This requirement of a
different court is demanded in Spanish jurisprudence because Spanish courts
are divided according to their jurisdictions, some courts being exclusively of
civil jurisdiction, others of criminal jurisdiction. In the Philippines where our
courts are vested with both civil and criminal jurisdiction, the principle of
prejudicial question is to be applied even if there is only one court before
which the civil action and the criminal action are to be litigated. But in this
case, the court, when exercising its jurisdiction over the civil action for the
annulment of marriage, for example, is considered as a court distinct and
different from itself when trying the criminal action for bigamy. (Merced vs.
Diez, 109 Phil. 155, 160-161)
Examples of prejudicial question:

(1) There was a pending appeal before the Supreme Court wherein the
principal question involved was the genuineness of a certain document.
After the presentation of the appellant's brief, appellee presented a
motion alleging that said document was false. The Supreme Court
891
resolved that when the appeal was to be determined on the merits, the
said motion would be decided. At that stage ofthe case, appellee filed
with the City Fiscal a complaint for falsification based on the same
document. Was it proper for the fiscal to proceed with the investigation
ofthe criminal complaint for falsification?
Held: No. The Fiscal must wait until the case before the
Supreme Court is decided first, because if the Supreme Court
should decide that the document is genuine and has not been
substituted, such finding would be contrary to the stand taken by
the Fiscal. (De Leon vs. Mabanag, 70 Phil. 202)
(2) The pendency of a petition for judicial declaration of nullity of the first
marriage is not a prejudicial question in an action for bigamy. The
subsequent judicial declaration of the nullity of the first marriage is
immaterial because prior to the declaration of nullity, the crime had
already been consummated. (Mercado vs. Tan, G.R. No. 137110, Aug.
1, 2000)
A case for annulment of marriage is a prejudicial question to a
bigamy case if it is proved that the accused's consent to such marriage
was obtained by means of duress, violence and intimidation in order to
establish that his act in the subsequent marriage was an involuntary one
and as such the same cannot be the basis for conviction. (Donato vs.
Luna, No. L-53642, April 15,1988,160 SCRA 441,447, citing Landicho
vs. Relova, 22 SCRA 731)
When civil action not a prejudicial question. — If it is the second
wife who filed the civil action against the accused charged with bigamy,
alleging that the accused by means of force and threats forced her to
marry him, the accused cannot properly claim that the civil action is a
prejudicial question, because even if the allegation in the civil case is
true, the fact remains that the accused contracted the second marriage
voluntarily. If the second wife were the one accused of bigamy, she could
perhaps raise force or intimidation as a defense in the charge of bigamy,
because on her part there was no consent to the marriage; but not the
party, who used the force or intimidation. The latter may not use his
own malfeasance to defeat the action based on his criminal act. (People
vs. Aragon,
94 Phil. 357, 360; See also Donato vs. Luna, No. L-53642, April 15, 1988,
160 SCRA 441, 447 where the complaint for annulment was grounded
on deceit.)
892
(3) A civil case was filed for unpaid wages claimed by a number of laborers.
In that case, the obligation of defendants to pay wages was in issue.
There was then a criminal action pending against one ofthe defendants
in the civil case for protracted delay in the payment of wages as
penalized by Com. Act No. 303. The defendants asked for the suspension
ofthe civil action until the criminal case be finally disposed of. Must the
court order the suspension of the trial of the civil action?
No. The obligation to pay wages is a prejudicial question, for
there can be no extended delay in the payment of such obligations
unless the obligation be first proved.
(Aleria vs. Mendoza, 83 Phil. 427, 429)
Compare the above case with the following case.

A and B were accused of violation of the Copyright Law. Later, A and B
brought an action for the cancellation of copyrights granted to the
complainant. Is the action for cancellation of the copyrights a prejudicial
question which must be decided first? No, because until cancelled, the
copyrights are presumed to have been duly granted and issued. (Ocampo vs.
Tancinco, 96 Phil. 459, 460)
In the case of Aleria vs. Mendoza, supra, the ruling is consistent with the
presumption of innocence on the part of the accused. In the case of Ocampo vs.
Tancinco, the ruling is based on the presumption of regularity in the granting
and issuance of the copyrights.
When the question is not determinative of the guilt or

innocence of the parties charged with estafa, it is not a
prejudicial question.
The alleged prejudicial question is not determinative of the guilt or
innocence of the parties charged with estafa. Even if the execution ofthe
receipt in the civil case was vitiated by fraud, duress or intimidation, the guilt
of the accused could still be established by other evidence by showing that they
actually received from the complainant the sum of P20.000 with which to buy
a fishing boat and that instead of doing so, they misappropriated the money
and refused to return it to him upon demand. A claim to this effect is a matter
of defense to be interposed by the party charged in the criminal proceeding.
(Jimenez vs. Averia, No. L-22759, March 29,
1968, 22 SCRA 1380, 1382)
893
Art. 101 CIVIL LIABILITY IN CERTAIN CASES
An acquittal in a criminal case is not evidence of
innocence in subsequent civil action based upon the
alleged criminal act.
In a civil case, the Solicitor General moved for the cancellation of the
certificate of naturalization issued in favor ofthe petitioner, upon the ground
that it was secured illegally and fraudulently. Among the acts of
misrepresentation and misconduct imputed to the petitioner was the alleged
maltreatment by him of Mrs. Joist. It appeared that the Municipal Court
which tried the maltreatment case acquitted the defendant (petitioner). The
court trying the civil case did not take into account the evidence introduced in
that civil case in support of the charge of maltreatment.
It was held that the trial court erred in not taking into account the
evidence introduced in the civil case in support of the charge of maltreatment.
The Supreme Court stated that the great weight of authority supports the rule
that a judgment of acquittal is not effec-
tive under the doctrine of res judicata in later civil proceedings, and does not
constitute a bar to a subsequent civil action involving the same subject-matter.
An acquittal in a criminal prosecution does not constitute evidence of
innocence in subsequent civil action based upon the alleged criminal act.
(Republic vs. Asaad, 51 O.G. 703)
But where the state is a party to the civil action, the issues determined
by the conviction of the defendant are concluded in the civil action. (See the
citation in the same case of Republic vs. Asaad.)
When to plead prejudicial question.

A petition for suspension ofthe criminal action based upon the pendency
of a prejudicial question in a civil action may be filed in the office ofthe
prosecutor or the court conducting the preliminary investigation. When the
criminal action has been filed in court for trial, the petition to suspend shall be
filed in the same criminal action at any time before the prosecution rests. (Sec.
6, Rule 111, Revised Rules of Criminal Procedure)
Art. 101. Rules regarding civil liability in certain cases. — The exemption
from criminal liability established in subdivisions
1, 2, 3, 5, and 6 of Article 12 and in subdivision 4 of Article 11 Art. 101
of this Code does not include exemption from civil liability, which shall be
enforced subject to the following rules:
894
CIVIL LIABILITY IN CERTAIN CASES
First: In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability
for acts committed by an imbecile or insane person, and by a person under
nine years of age, or over nine
but under fifteen years of age, w h o has acted without discernment, shall
devolve upon those having such a person under their legal authority or
control, unless it appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile, or minor under

his authority, legal guardianship, or control, or if such person be insolvent,
said insane, imbecile, or minor shall respond with their o w n property,
excepting property exempt from execution, in accordance with the civil law.
Second: In cases falling within subdivision 4 of Article 11, the persons
for w h o s e benefit the harm has been prevented shall be civilly liable in
proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate
amount for w h i c h each one shall be liable.
When the respective shares cannot be equitably determined, even
approximately, or w h e n the liability also attaches to the Government, or to
the majority of the inhabitants of the town, and, in all events, w h e n e v e r
the damage has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or
regulations.
Third: In cases falling within subdivisions 5 and 6 of Article 12, the
persons using violence or causing the fear shall be primarily liable and
secondarily, or, if there be no such persons, those doing the act shall be liable,
saving always to the latter that part of their property exempt from execution.
Civil liability of persons exempt from criminal liability.

Exemption from criminal liability does not include exemption from civil
liability.
Exceptions:
1. There is no civil liability in paragraph 4 of Article 12 which
provides for injury caused by mere accident.
2. There is no civil liability in paragraph 7 of Article 12 which
provides for failure to perform an act required by law when
895
Note: The exemption from criminal liability does not include exemption
from civil liability in the cases provided for in paragraphs 1, 2,
3, 5 and 6 of Article 12. Paragraphs 4 and 7 are not mentioned.
Therefore, there is also exemption from civil liability in the
cases provided for in paragraphs 4 and 7 of Article 12.
The ruling in People vs. Vitug, 8 C.A. Rep. 905, that
exemption from criminal liability under paragraph 4, Article
12, Revised Penal Code, does not include exemption from civil
liability, is erroneous.
Who are civilly liable for acts of insane or minor exempt

from criminal liability?
The civil liability for acts committed by an imbecile or insane or minor
exempt from criminal liability shall devolve upon the persons having legal
authority or control over them, if the latter are at fault or negligent.
If there is no fault or negligence on their part, or even if at fault or
negligent but insolvent, or should there be no person having such authority or
control, the insane, imbecile, or such minor shall respond with their own
property not exempt from execution.
The persons having the insane or minor under their legal authority or
control are primarily liable to pay the civil liability for acts committed by such
insane or minor.
But they can avoid civil liability by pleading and proving the defense
that there was no fault or negligence on their part.
Under Article 101 ofthe Revised Penal Code, a father is made civilly
liable for the acts committed by his son if the latter is an imbecile, an insane,
under 9 years of age, or over 9 but under 15 years of age, who acts without
discernment, unless it appears that Art. 101
there is no fault or negligence on his part. This is because a son who commits
the act under any of those conditions is by law exempt from criminal liability.
(Articles 12, 1, 2 and 3, Revised Penal Code) The idea is not to leave the act
entirely unpunished but to attach certain civil liability to the person who has
the delinquent minor under his legal authority or control. (Paleyan vs.
Bangkili, No. L-22253, July 30,1971, 40 SCRA 132, 135, citing Salen vs. Balce,
107 Phil. 748)
Civil liability for acts of a minor over 15 years of age who

acts with discernment.
896
CIVIL LIABILITY IN CERTAIN CASES
A minor over 15 years of age who acts with discernment is not exempt
from criminal liability, hence, the silence of the Revised Penal Code as to the
subsidiary liability of his parents should he be convicted. The particular law
that governs is Article 2180 of the Civil Code, the pertinent portion of which
provides: "The father and, in case of his death or incapacity, the mother, are
responsible for damages caused by the minor children who live in their
company." To hold that this provision does not apply because it only covers
obligations which arise from quasi-delicts and not obligations which arise
from criminal offenses, would result in the absurdity that while for an act
where mere negligence intervenes the father or mother may stand subsidiarily
liable for the damage caused by his or her son, no liability would attach if the
damage is caused with criminal intent. The void that apparently exists in the
Revised Penal Code is subserved by this particular provision ofthe Civil Code.
(Paleyan vs. Bangkili, supra)
Note: Art. 201 of the Child and Youth Welfare Code which provides
that the civil liability for acts committed by a youthful offender (a child over 9
but under 18 years of age at the time of the commission of the offense) shall
devolve upon the offender's father and, in case of his death or incapacity,
upon the mother, or in case of her death or incapacity, upon the guardian,
now governs with respect to the subsidiary liability of parents for the civil
liability of a minor over 15 years of age who acts with discernment.
The provisions ofthe Civil Code.

The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their
company.
Guardians are liable for damages caused by the minors or incapacitated
persons who are under their authority and live in their company.
The responsibility treated in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father of
a family to prevent damage. (Art. 2180, 2nd and last par., Civil Code)
If the minor or insane person causing damage has no parents or
guardian, the minor or insane person shall be answerable with his own
property in an action against him where a guardian ad litem shall be
appointed. (Art. 2182, Civil Code)
The final discharge of a child in conflict with the law does

not obliterate his civil liability.
The Juvenile Justice and Welfare Act of 2006 provides:
897
"SECTION 39. Discharge ofthe Child in Conflict with the Law. -
Upon the recommendation of the social worker who has custody ofthe
child, the court shall dismiss the case against the child whose sentence
has been suspended and against whom disposition measures have been
issued, and shall order the final discharge of the child if it finds that the
objective of the disposition measures have been fulfilled.
"The discharge of the child in conflict with the law shall not affect
the civil liability resulting from the commission ofthe offense, which
shall be enforced in accordance with law."
Persons civilly liable for acts committed by youthful

offenders.
The Child and Youth Welfare Code provides:
"ART. 201. Civil Liability of Youthful Offenders. - The civil
liability for acts committed by a youthful offender shall devolve upon the
offender's father and, in case of his death or incapacity, upon the mother, or
in case of her death or incapacity, upon the guardian. Civil liability may also
be voluntarily assumed by a relative or family friend of the youthful
offender." Duty of court trying an insane.
In a fit of insanity, the accused attacked a woman with a bolo and
instantly killed her.
898
SUBSIDIARY CIVIL LIABILITY OF
Art. 102
INNKEEPERS, ETC.
In declaring the accused not guilty because he is exempt from criminal

liability by reason of .insanity, has the court the authority to order him to
indemnify the heirs of the deceased?
Courts, in rendering judgment in a criminal case prosecuted against an
insane, even when they hold the accused exempt from criminal liability, must
fix the civil liability of the person charged with the watching over and caring
for him or the liability of the demented person himself with his property. (U.S.
vs. Baggay, 20 Phil.
142, 146-147)
In the case of U.S. vs. Baggay, supra, the defendant was acquitted of
murder because he was insane when he committed the act, but he was
sentenced to indemnify the heirs of the deceased in the sum of P1,000.
This ruling applies also to other cases under this article.
Who are civilly liable for acts committed by persons acting

under irresistible force or uncontrollable fear?
The persons using violence or causing the fear are primarily liable.
If there be no such persons, those doing the act shall be liable
secondarily.
Civil liability of persons acting under justifying

circumstances.
There is no civil liability in justifying circumstances.
Exception:
In paragraph 4 of Article 11, there is civil liability, but the person civilly
liable is the one benefited by the act which causes
damage to another. (See Tan vs. Standard Vacuum Oil Co., 91 Phil.
672.)
Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers, and

proprietors of establishments. — In default of the persons criminally liable,
innkeepers, tavernkeepers, and any other persons or corporations shall be
civilly liable for crimes comArt. 102
INNKEEPERS, ETC.
899
mitted in their establishments, in all cases where a violation of municipal
ordinances or some general or special police regulations shall have been
committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken
by robbery or theft w i t h i n their h o u s e s from g u e s t s l o d g i n g t h e r
e i n , or for the p a y m e n t of the value thereof, provided that su ch guests
shall h a v e notified in advance the i n n k e e p e r himself, or the person
representing him, of the deposit of such goods w i t h i n the inn; and shall
furthermore h a v e followed the directions w h i c h such innkeeper or his
representative m a y h a v e given t h e m with respect to the care of and
vigilance over s u c h goods. No liability shall attach in case of robbery w i t h
violence against or intimidation of p e r s o n s u n l e s s c o m m i t t e d by the
innkeeper's employees.
Elements under paragraph 1:

1. That the innkeeper, tavernkeeper or proprietor of establishment or
his employee committed a violation of municipal ordinance or
some general or special police regulation.
2. That a crime is committed in such inn, tavern or establishment.
3. That the person criminally liable is insolvent.

When all the above elements are present, the innkeeper, tavernkeeper
or any other person or corporation is civilly liable for the crime committed in
his establishment. This is known as subsidiary civil liability of innkeepers,
tavernkeepers or proprietors of establishments.
Example:
If homicide is committed in an inn or bar on a Sunday which, according
to the ordinances, should be closed, since the innkeeper in this case violates the
ordinances by opening his establishment for business on a prohibited day, he
shall be subsidiarily liable for the indemnity or civil liability to the heirs ofthe
deceased. (Guevara)
In such case, the innkeeper or owner of the establishment is civilly liable
for such crime committed therein, if the offender is insolvent.
Elements under paragraph 2:
900
SUBSIDIARY CIVIL LIABILITY OF Art. 103 OTHER
PERSONS
1. The guests notified in advance the innkeeper or the person
representing him of the deposit of their goods within the inn or
house.
2. The guests followed the directions ofthe innkeeper or his
representative with respect to the care of and vigilance
over such goods.
3. Such goods of the guests lodging therein were taken by robbery
with force upon things or theft committed within the inn or house.
When all the above elements are present, the innkeeper is subsidiarily
liable.
No liability shall attach in case of robbery with violence against or
intimidation of persons, unless committed by the innkeeper's employees.
It is not necessary that the effects of the guest be actually

delivered to innkeeper.
In a case where the owner of a hotel disclaimed liability because plaintiff
did not deposit his properties with the manager despite a notice to that effect
posted in the hotel, it was held that actual delivery to him or his employee of
the effects ofthe guest is not necessary; it is enough that they were within the
inn. (De los Santos vs. Tarn Khey,
C.A., 58 O.G. 7693, citing 29 Am. Jur. 89-90)
Art. 103. Subsidiary civil liability of other persons. — The subsidiary

liability established in the next preceding article shall also apply to employers,
teachers, persons, and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
901
OTHER PERSONS
Art. 103
Elements:
1. The employer, teacher, person or corporation is engaged in any
kind of industry.
2. Any of their servants, pupils, workmen, apprentices or employees
commits a felony while in the discharge of his duties.
3. The said employee is insolvent and has not satisfied his civil
liability.
In order that an employer may be held subsidiarily liable for the
employee's civil liability in the criminal action, it should be shown: (1) that the
employer is engaged in any kind of industry, (2) that the employee committed
the offense in the discharge of his duties and (3) that he is insolvent. The
subsidiary liability of the employer, however, arises only after conviction ofthe
employee in the aiminal action. (Carpio vs. Doroja, G.R. No. 84516, Dec. 5,
1989, 180 SCRA 1, 7, citing Basa Marketing Corp. vs. Bolinao Sec. & Inv.
Services, Inc., 117 SCRA 15)
In this case, when all these elements are present, the employer or
teacher is subsidiarily liable.
Example:
A workman of a construction company stole some things while he was
making minor repairs in a house, and after being prosecuted was found guilty
by the court. The workman cannot satisfy his own civil liability.
Under such circumstances, the company is liable subsidiarily for the
restitution of the things or for the payment of their value. (Guevara)
Employer must be engaged in industry.

Meaning of "industry."
An enterprise not conducted as a means of livelihood or for profit does

not come within the meaning of the term "business," "trade," or "industry."
(Clemente vs. Foreign Mission Sisters, C.A., 38 O.G. 1594)
"Industry" is any department or branch of art, occupation or business;

especially, one which employs so much labor and capital and is a distinct
branch of trade. Hence, a person who owns a truck and uses it in the
902
PERSONS
transportation of his own products is engaged in industry. (Telleria vs. Garcia,
C.A., 40 O.G., Supp., 12, 115)
Hospital not engaged in industry; nurses not servants.

A hospital is not engaged in industry; hence, not subsidiarily liable for
acts of nurses. Nurses, in treating a patient, are not acting as servants of the
hospitals, because they are employed to carry out the orders of the physicians,
to whose authority they are subject. (Clemente vs. Foreign Mission Sisters,
supra)
Private persons without business or industry, not

subsidiarily liable.
The car driven by S was bumped by the car of V driven by the latter's
chauffeur. The chauffeur who was found guilty was insolvent.
Is V subsidiarily liable?
No, because V is a private person who has no business or industry and
uses his automobile for private purposes. V does not fall under Art. 103 ofthe
Revised Penal Code. (Steinmetz vs. Valdez, 72 Phil. 92, 93)
The felony must be committed by the servant or employee

of the defendant in the civil case.
Thus, where the driver, who drove a jeepney without the owner's
consent, was arrested and prosecuted for, and found guilty of, homicide
through reckless imprudence, the owner of the jeepney is not subsidiarily
liable for the indemnity adjudged against the driver. (Clarianes vs. Sabinosa,
C.A., 55 O.G. 3846)
Decision convicting an employee is binding upon the

employer with respect to the civil liability and its amount.
Under Article 103 of the Revised Penal Code, employers are subsidiarily
liable for the adjudicated civil liabilities of their employees in the event of the
latter's insolvency. The provisions of the Revised Penal Code on subsidiary
liability — Articles 102 and 103 — are deemed written into the judgments in
the cases to which they are applicable. (Alvarez v. CA, 158 SCRA 57,
February 23,1988) Art 103
Thus, in the dispositive portion of its decision, the trial court need not
expressly pronounce the subsidiary liability of the employer.
903
OTHER PERSONS
The decision convicting an employee in a criminal case is binding and
conclusive upon the employer not only with regard to the former's civil
liability, but also with regard to its amount. The liability of an employer
cf.nnot be separated from that of the employee. (Yusay v.
Adil, 164 SCRA 494, August 18, 1988.; Pajarito v. Seneris, 87 SCRA
275, December 14, 1978)
Before the employers' subsidiary liability is exacted, however, there
must be adequate evidence establishing that (1) they are indeed the employers
of the convicted employees; (2) that the former are engaged in some kind of
industry; (3) that the crime was committed by the employees in the discharge
of their duties; and (4) that the execution against the latter has not been
satisfied due to insolvency.
The resolution of these issues need not be done in a separate civil action.
But the determination must be based on the evidence that the offended party
and the employer may fully and freely present. Such determination may be
done in the same criminal action in which the employee's liability, criminal
and civil, has been pronounced (Ozoa v. Vda de Madula, 156 SCRA 779,
December 22,1987); and in a hearing set for that precise purpose, with due
notice to the employer, as part of the proceedings for the execution of the
judgment. (Phil. Rabbit Bus Lines vs. People, 147703, April 14, 2004)
Enforcement of civil liability is upon a motion for

subsidiary writ of execution.
The subsidiary liability may be enforced only upon a motion for
subsidiary writ of execution against the employer and upon proof that the
employee is insolvent. (Basilio v. Court of Appeals, 385 Phil. 21 [2000])
"While in the discharge of his duties."

The law makes the employer subsidiarily liable for the civil liability
arising from a crime committed by an employee "in the discharge of his
duties." This subsidiary liability does not arise from any and all offenses that
the employee may commit, but limited to those which he shall be found guilty
of in the discharge of his duties.
The law does not say that the crime of the employee must be the one
committed "while in the discharge of his duties." It could not be contemplated
that an employer will be held responsible for any misdeed that his employee
could have done while performing his assigned tasks. Thus, it is neither just
nor logical that, if a security guard committed robbery in a neighboring
establishment near the one he is assigned to guard, or raped a woman
904
PERSONS
passerby in the course of his tour of duty, his employer should be made
subsidiarily liable for his said misdeed. In such circumstances, it cannot be
said that the crime was committed by the employee "in the discharge of his
duties."
(Baza Marketing Corporation vs. Bolinao Security and Investigation Service,
Inc., No. L-32383, Sept. 30, 1982, 117 SCRA 156, 163)
The fact that the owner of the car was not riding therein at the time of
the accident and did not know that the chauffeur had taken the car, clearly
shows that the accident did not occur in the course of the performance ofthe
duties for which said chauffeur had been hired. His service is confined to
driving his master's car as the latter ordered him. The owner of the car was
not subsidiarily liable. (Marquez vs. Castillo, 68 Phil. 568, 571)
The subsidiary liability of the employer is not determined

in the criminal case against the employee. Reservation not
necessary.
The subsidiary liability of the master or employer provided for in
Article 103 of the Revised Penal Code is not litigated in connection with the
criminal prosecution ofthe employee, pupil, etc. Reservation of the right to
bring action by the injured party against the master or employer is not
necessary. The rule of res adjudicata cannot be invoked for or against one who
was not a party to the cause in which the former judgment was rendered.
(Phil. Railway Co. vs. Jalandoni,
C.A., 40 O.G. 19, Supp. 11, 19)
Subsidiary liability of employers, etc., "for felonies

committed by their x x x employees."
The word "committed," as used in Article 103, implies that the
employee was convicted of the felony with which he was charged in the
criminal case.
There can be no automatic subsidiary liability of defendantemployer
under Article 103 of the Revised Penal Code, where his Art. 103
employee has not been previously criminally convicted. There having been no
criminal conviction of the employee wherein his civil liability was determined
and fixed, no subsidiary liability under Article 103 can be claimed against
defendant-employer. (Jamelo vs. Serfino, No. L-26730, April 27, 1972, 44
SCRA 464, 467)
905
OTHER PERSONS
Employer has the right to take part in the defense of his
employee.
It is true that an employer is not a party to the criminal case instituted
against his employee, but he has subsidiary liability imposed upon him by law.
It is his concern to see to it that his interest be protected in the criminal case
by taking virtual participation in the defense of his employee. He cannot leave
him to his own fate because his failure is also his. (Miranda vs. Malate Garage
& Taxicab, Inc., 99 Phil. 670, 675)
Certified copy of decision sufficient to prove offense

committed by servant or employee.
Judgment of conviction of servant or employee in the absence of any
collusion between the defendant and the offended party binds the persons
subsidiarily liable. The plaintiff can rely solely on the
Common sense dictates that a fmding of guilt in a criminal case, in
which proof beyond reasonable doubt is necessary, should not be nullified in a
subsequent civil action requiring only a preponderance of evidence to support
a judgment. (Martinez vs. Barredo, 81 Phil. 1, 3)
Employer is subsidiarily liable for the full amount against

employee.
R was the driver of a Halili bus. B was the driver of a jeepney.
The two vehicles collided through the reckless imprudence of both drivers,
causing serious physical injuries on G. R and B were convicted of serious
physical injuries through reckless imprudence and were sentenced solidarily to
pay an indemnity of P3,670 to G. As R and B could not pay the indemnity by
reason of insolvency, G sued the owner of the bus.
Held: Halili was liable for the full amount of r*3,670, and not merely 1/2
thereof, but without prejudice to the right of action against B for contribution.
(Gonzales vs. Halili, G.R. No. L-11521, Oct. 31, 1958)
No defense of diligence of a good father of a family.

It will be seen that neither in Art. 103 nor in any other article of the
Revised Penal Code, is it provided that the employment of the diligence to be
expected of a good father of a family in the selection of his employees will
exempt the parties secondarily liable for damages, as is provided in Art. 1903
in connection with Art. 1902 (now Arts. 2176 and 2180) ofthe Civil Code,
906
PERSONS
which treat of liabilities arising from acts or omissions not punishable by law.
(Arambulo vs. Meralco, 55 Phil. 75, 78-79; Yumul vs. Pampanga Bus Co., 72
Phil.
94, 97)
Art. 103 is applicable to violations of Revised Motor

Vehicle Law.
The defendant is subsidiarily liable for indemnities even if its driver was
convicted under the Revised Motor Vehicle Law, because Art. 103 of the Code
is applicable by virtue of its Art. 10. (Copiaco vs. Luzon Brokerage, 66 Phil.
184, 190-191)
Arts. 102 and 103 ofthe Revised Penal Code are not
repealed by Art. 2177 of the new Civil Code.
Art. 2177 of the Civil Code expressly recognizes civil liabilities arising
from negligence under the Penal Code, only that it provides that the plaintiff
cannot recover damages twice of the same act or omission ofthe defendant.
(Manalo vs. Robles Trans. Co., Inc., 52
O.G. 5797)
The provisions ofthe Civil Code.

The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their employees
and household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
Art. 103
The State is responsible in like manner when it acts through a special

agent; but not when the damage has been caused by the official to whom the
task done properly pertains, in which case what
is provided in Article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be
liable for damages caused by their pupils and students or apprentices, so long
as they remain in their custody. (Art. 2180, Civil
907
OTHER PERSONS
Code)
In motor vehicle mishaps, the owner is solidarily liable with his driver, if
the former, who was in the vehicle, could have, by the use of due diligence,
prevented the misfortune. It is disputably presumed that a driver was
negligent, if he had been found guilty of reckless driving or violating traffic
regulations at least twice within the next preceding two months.
If the owner was not in the motor vehicle, the provisions of Article 2180
are applicable. (Art. 2184, Civil Code)
Unless there is proof to the contrary, it is presumed that a person
driving a motor vehicle has been negligent if at the time of the mishap, he was
violating any traffic regulation. (Art. 2185, Civil Code)
The responsibility of two or more persons who are liable for a quasi-
delict is solidary. (Art. 2194, Civil Code)
Persons civilly liable in the absence of those criminally

liable, the civil responsibility being a necessary part of the
criminal liability.
1. Innkeeper, tavernkeeper, and any other person or corporation who
committed violation of municipal ordinance or some general or special
police regulation, and the person who committed a crime in his
establishment cannot be found or is insolvent.
2. Innkeeper, for robbery with force upon things or theft of goods of guests
lodging therein, provided the guests notified the innkeeper in advance of
the deposit of their goods within the inn, and provided further that such
guests followed the directions of the innkeeper with respect to the care of
and vigilance over such goods.
908
OTHER PERSONS
Art. 103
3. The employer who is engaged in any kind of industry, for the crime
committed by his employee while in the discharge of his duties.
4. Those having an imbecile or insane person or minor exempt from
criminal liability under their legal authority or control, if they are at fault
or negligent, for acts committed by the imbecile, insane or minor.
5. Persons who acted under the compulsion of irresistible force or under the
impulse of uncontrollable fear are civilly liable if the person who used
violence or who caused the fear is insolvent or cannot be found.
909
Chapter Two
WHAT CIVIL LIABILITY INCLUDES
Art. 104. What is included in civil liability. — The civil liability

established in Articles 100, 101, 102, and 103 of this Code includes:
1. Restitution;
2. Reparation of damage caused;
3. Indemnification for consequential damages.
Civil liability in criminal cases.

The first remedy granted by law is restitution of the thing taken away by
the offender; if restitution cannot be made by the offender (Art. 105), or by his
heirs (Art. 108), the law allows the offended party reparation. (Art. 106;
People vs. Mostasesa, 94 Phil. 243, 244) In either case, indemnity for
consequential damages may be required. (Art. 107)
There are crimes where there is no civil liability.

There are crimes where only one or none at all of these civil obligations
is possible.
Thus, in theft or robbery — when the property taken is recovered —
only reparation, if any damage, will be allowed.
In assault upon a person in authority which caused no physical injuries,
not one of them is possible.
In some crimes, the three civil obligations in Art. 104 may be declared
and enforced. Thus, for the crime of occupation of real property in Art. 312,
the defendant may be required:
(a) to restore the real property occupied (restitution);
(b) to repair the damages caused to it (reparation); and
(c) to indemnify the offended party for all the consequential
910
WHAT CIVIL LIABILITY INCLUDES Art. 104

damages he has sustained due to the commission of the crime.
(indemnification)
Examples of —
1. Restitution — in theft the culprit is duty-bound to return the
property stolen.
2. Reparation — in case of inability to return the property stolen, the
culprit must pay the value of the property stolen; in case of
physical injuries, the reparation of the damage caused would
consist in the payment of hospital bills and doctor's fees to the
offended party.
3. Indemnifications for consequential damages — the loss of his
salary or earning.
When property taken away is not recovered, the court

must order the accused to restore it to its owner or, as an
alternative, to pay its just value.
When in due judgment of conviction the court did not grant the accused
the alternative to return the thing which he had appropriated or to pay its just
value, the court is in error. (People vs. Fortuno, 73
Phil. 429, 430)
Civil liabilities distinguished from pecuniary liabilities.

Art. 104, providing for three forms of civil liabilities, and Art.
38, providing for the order of payment of pecuniary liabilities, may be
distinguished, as follows:
1. Both include (a) the reparation of the damage caused, and
(b) indemnification for consequential damages;
2. While civil liabilities include restitution, pecuniary liabilities do
not include restitution, because the latter refer to liabilities to be
paid out of the property of the offender. In restitution, there is
nothing to pay in terms of money, as the property unlawfully
taken is returned.
3. Pecuniary liabilities include (a) fine, and (b) the costs of the
proceedings. Civil liabilities do not include them.
911
Art. 105
RESTITUTION
Art. 105. Restitution — How made. — The restitution of the thing itself
must be made whenever possible, with allowance
for any deterioration or diminution of value as determined by the court.
The thing itself shall be restored, even though it be found in the
possession of a third person w h o has acquired it by law-
ful means, saving to the latter his action against the proper person w h o may
be liable to him.
This provision is not applicable in cases in w h i c h the thing has been
acquired by the third person in the manner and under the requirements
which, by law, bar an action for its recovery.
"The restitution of the thing itself must be made whenever

possible."
The convict cannot, by way of restitution, give to the offended party a
similar thing of the same amount, kind or species and quality.
Appellants claim that since the property (tobacco) involved in the
criminal case is a fungible thing and that, in accordance with Art. 1953 of the
Civil Code, the obligation of one who receives money or fungible things is to
return to the creditor the same amount of the thing owed, of the same kind or
species and quality, they should be allowed to return only the equivalent.
Held: The civil liability ofthe appellants is not governed by the Civil
Code, but by Articles 100-111 ofthe Penal Code. The sentence should be for
the return of the very thing taken (restitution), or, if it cannot be done, for the
payment of its value (reparation). The purpose of the law is to place the
offended party as much as possible in the same condition as he was before the
offense was committed against him. (People vs. Mostasesa, 94 Phil. 243, 244)
Is Art. 105 properly applied to the forfeiture of the house built with the
money malversed by a public officer?
In the case of Garcia vs. Bituin, CA-G.R. No. 12297-R, Sept. 24,
1958, the Court of Appeals applied Art. 105 to the forfeiture of the house built
with the money malversed by a public officer.
"With allowance for any deterioration or diminution of

value."
912
RESTITUTION Art. 105
Thus, if the property stolen while in the possession ofthe thief suffers
deterioration due to his fault, the court will assess the amount of the
deterioration and, in addition to the return of the property, the culprit will be
ordered to pay such amount representing the deterioration.
"The thing itself shall be restored, even though it be found

in the possession of a third person who has acquired it by
lawful means."
The general rule is that the owner of property illegally taken by the
offender can recover it from whomsoever is in possession thereof.
Whoever may have been deprived of his property in consequence of a
crime is entitled to the recovery thereof, even if such property is in the
possession of a third party who acquired it by legal means other than those
expressly stated in Arts. 559 and 1505 ofthe Civil Code. (See U.S. vs. Sotelo, 28
Phil. 147.)
The fact that the accused was sentenced to pay its value, does not bar the
recovery of the article by the owner from anyone holding it. (Gacula vs.
Martinez, 88 Phil. 142, 145)
"Who has acquired it by lawful means."

The second paragraph of Art. 105 provides that the thing itself shall be
restored, even though it be found in the possession of a third person who has
acquired it by lawful means.
Thus, even if the property stolen was acquired by a third person by
purchase without knowing that it had been stolen, such property shall be
returned to the owner.
If the thing is acquired by a person who knows it to be stolen, he is an
accessory and he is also criminally liable.
Under the Civil Code, the person who has lost any
personal property or has been unlawfully deprived
thereof cannot obtain its return without reimbursing the
price paid therefor,
RESTITUTION
only when the possessor thereof acquired it in good faith

at
913
Art. 105
a public sale.
Art. 559 ofthe Civil Code (Rep. Act No. 386) provides: The possession of
movable property acquired in good faith is equivalent to a
title. Nevertheless, one who has lost any movable or has been unlaw-
fully deprived thereof, may recover it from the person in possession of the
same.
If the possessor of a movable lost or of which the owner has been
unlawfully deprived, has acquired it in good faith at a public sale, the owner
cannot obtain its return without reimbursing the price paid
therefor.
Must be acquired (1) "at public sale," and (2) "in good
faith."
A was convicted of estafa for having pawned the jewels which had been
given to him by B to be sold on commission. Having found that the jewels had
been pawned by A to a pawnshop, B filed a petition in court to require the
owner of the pawnshop to restore said jewels.
Held: The owner of the pawnshop may be obliged to make restitution of
the jewels, because although he acted in good faith, he did not acquire them at
public sale. (Varela vs. Finnick, 9 Phil. 482, 484)
The court which convicted the accused of estafa may summon the owner
of the pawnshop and, after hearing him, order the return of the jewels pawned
to him without reimbursement of the amount of the pledge. The pawnshop
owner may seek his remedy from the person who pawned the jewels. (Reyes
vs. Ruiz, 27 Phil. 458, 460461)
Where the purchaser of the stolen carabao was held not criminally
liable, he should nevertheless restore the carabao to the lawful owner, without
reimbursement of the price, since he did not purchase the carabao at a public
sale. But said purchaser may sue the thief for the recovery of what he had
paid. (U.S. vs. Soriano, 12 Phil. 512,
515)
Restitution cannot be ordered before final judgment.

The things involved in an estafa case, which are in the custody of a
possessor in good faith, cannot be returned by the trial court to the alleged
offended party before final judgment is rendered in the estafa case. Restitution
would be premature in that case, because the mere filing of a criminal action
for estafa is no proof that estafa was in fact committed. (Chua Hai vs.
Kapunan, Jr., 104 Phil. 110, 114-115)
914
When the third person acquired the thing "in the manner
and under the requirements which, by law, bar an action
for its recovery."
Restitution shall not be ordered by the court when the thing has been
acquired by the third person in the manner and under the circumstances
which, by law, bar an action for its recovery.
1. Thus, an innocent purchaser for value of property covered by a
Torrens Title, cannot be required to return the same to its owner
who has been unlawfully deprived of it, because Sec. 39 of Act No.
496 specially protects the title of an innocent purchaser.
2. When sale is authorized, the property cannot be recovered. Where
the owner of personal property delivered it to another for the
purpose of sale, the fact that the latter sold it at a price lower than
that fixed does not prevent the passing of title to the purchaser and
the property cannot be recovered by the previous owner. It was
not the sale of the jewels for a lower price that constituted the
crime of estafa, but the act of misappropriating the proceeds ofthe
sale.
A person who is not a party in the case cannot recover in

the criminal action any indemnity from the accused.
Example: A stole a caraballa belonging to B. A sold it to C for P100. In
the case where A was charged with theft ofthe caraballa, the court ordered C
to return the animal to B and ordered A to indemnify C in the sum of P100.
Can C recover the f*100 in the same case? No, because in selling the animal to
C, A pretended to be the owner thereof, thereby committing estafa, which is
another offense.
The person convicted of theft cannot be condemned to indemnify the
purchaser ofthe stolen animal, because the stealing of the animal and its
subsequent sale by the thief to a third person constitute dis-
915
Art. 105 RESTITUTION
tinct crimes of theft and estafa and the offended parties are different, being
the owner and purchaser, respectively. (U.S. vs. Barambangan, 34 Phil. 645,
646)
When the liability to return a thing arises from contract,

not from a criminal act, the court cannot order its return in
the criminal case.
Thus, when after trial the court finds that a sum of money was received
by the accused from the complainant as a loan, and for that reason dismisses
the criminal case for estafa, it cannot order the accused to pay the amount to
the complainant, because his liability to return it arises from civil contract, not
from a criminal act, and may not be enforced in the criminal case. (People vs.
Pantig, 97 Phil. 749,750)
Restitution may be ordered, even if accused is acquitted,

provided the offense is proved and it is shown that the
thing belongs to somebody else.
As a rule, if the accused is acquitted, the court should not order the
return ofthe property to its alleged owner. But if it is shown that the ring
belonged to, and was in the possession of, somebody else, and that it was stolen
from him, but the identity of the thief was not established by the prosecution,
and the accused pawned it in the pawnshop from which it was recovered, the
court should order its return to the owner. In this case, the offense was proved
but not the identity ofthe offender. (People vs. Alejano, 54 Phil. 987, 989)
Is restitution limited only to crimes against property?

When a crime is not against property, no restitution or reparation ofthe
thing can be done. (De las Penas vs. Royal Bus Co., Inc., C.A., 56 O.G. 4052)
But in a treason case, the defendant was ordered to return the P3,900 to
the person from whom he took the same when he committed the treasonous
act. (People vs. Logo, 80 Phil. 377, 379)
In an abduction case, the defendants were ordered to return the f*10.00
taken by them from the offended girl. (U.S. vs. Banila, 19 Phil. 130, 134)
The return of the usurious interest collected in violation of the Usury
Law is in the nature of restitution of a thing criminally obtained. (People vs.
Caldito, 72 Phil. 263, 265)
Salary of acquitted accused may not be ordered paid in

criminal cases.
The payment of salary of an employee during the period of suspension
cannot, as a general rule, be properly decreed by the court in a judgment of
916
acquittal. It devolves upon the head of the department concerned, and is
discretionary with him. (People vs. Manigo, 69 Phil.
496, 497)
Neither the Revised Penal Code nor the Rules of Court on criminal
procedure vests in the court, authority to grant such relief. No issue was
joined on whether the accused was entitled to the payment of his salary during
suspension. (Manila Railroad Co. vs. Baltazar, 93 Phil. 715, 717-718)
The Court has authority to order the reinstatement of the

accused acquitted of a crime punishable by the penalty of
perpetual or temporary disqualification.
People vs. Consigna
(G.R. No. L-18087, Aug. 31,1965)
Facts: Pablo A. Consigna, then property clerk of the Division
Superintendent of Schools for Surigao del Norte, and Prospero E. Borja,
warehouseman of the NAMARCO, Surigao Branch, were charged with
the crime of willful malversation of government property. After trial,
the court rendered judgment of acquittal and ordered both accused to
be reinstated to their former positions.
Issue: Whether or not the trial court, besides acquitting accused,
had the authority to order their reinstatement.
Held: According to Art. 217 of the Revised Penal Code, a party
found guilty of malversation of public funds shall be punished with
imprisonment and the additional penalty of special perpetual
disqualification. It is clearly inferable from this that his conviction
necessarily results in his dismissal from public office he occupied at the
time he committed the offense.
The case of People vs. Daleon, L-15630, March 24, 1961, is not
controlling because the ruling in said case was simply to the effect that
917
Art. 106 REPARATION
upon acquitting one charged with malversation of public funds, the

court has no authority to order payment of his salaries corresponding
to the period of his suspension because his right to the same was not
involved in the case. This ruling does not apply to defendant's right —
in case of acquittal — of reinstatement because this matter would seem
to be involved in the case of malversation — albeit as a mere incident —
because conviction of the offense charged results necessar-
ily in a denial of such right to reinstatement in review of the penalty
of disqualification provided by law. If this is the inevitable result of
conviction, reinstatement should also follow acquittal.
The above ruling was applied in the case of People vs. Villanueva,
G.R. No. L-18769, May 27,1966, where the accused, who was acquitted,
was charged with the crime of infidelity in the custody of documents.
Art. 226, R.P.C, which defines the crime, prescribes the additional
penalty of temporary special disqualification in its maximum period to
perpetual special disqualification. Under Art. 31, R.P.C, the penalties of
perpetual or temporary disqualification shall produce the effect of
deprivation of the office affected.
Art. 106. Reparation — How made. — T h e c o u r t shall determine the

amount of damage, taking into consideration the price of the thing, w h e n e v
e r possible, a n d its special sentimental value to the injured party, and
reparation shall
be made accordingly.
Reparation will be ordered by the court if restitution is not

possible.
Thus, when the stolen property cannot be returned because it was sold
by the thief to an unknown person, he will be required by the court, if found
guilty, to pay the actual price of the thing plus its
sentimental value to its owner.
If there is no evidence as to the value of the thing unrecovered,
reparation cannot be made. (People vs. Dalena, C.A., G.R. Nos. 11387-R and
11388-R, Oct. 25,1954)
What reparation includes.

Under this provision, the repair of the material damage caused by the
robbers in breaking doors, wardrobes, etc., in addition to the
918
INDEMNIFICATION Art. 107
value of the thing taken, may be assessed and included as part ofthe reparation
to be paid by the robbers.
In a rape case, the accused was ordered to pay the value ofthe woman's
torn garments. This is reparation which is distinct from the indemnity. (U.S.
vs. Yambao, 4 Phil. 204, 206)
Civil damages are limited to those caused by and flowing

from the commission of the crime.
The civil damages which may be recovered in criminal action are limited
to consequential damage caused by, and flowing from, the commission of the
crime of which the accused is convicted.
Thus, if a person was convicted of estafa for not having returned a
bicycle which he had rented at the rate of f* 1.50 a day, the court may only
impose as indemnity or reparation the value of the bicycle, but cannot further
order him to pay the rents of said bicycle corresponding to the days during
which the owner ofthe same was deprived of its use.
The unpaid hire of the bicycle arose under the contract of hire and did
not result from the commission of the crime. The amount corresponding to the
unpaid hire is recoverable in a civil action. (U.S. vs. Dionisio, 35 Phil. 141, 143)
Payment by the insurance company does not relieve the

offender of his obligation to repair the damage caused.
The accused contends that inasmuch as the owner of the car damaged
was already paid his damages by the insurance company, he should not be
required to pay such damages caused by him. Held: That payment by the
insurance company was not made on behalf of the accused, but was made
pursuant to its contract with the owner of the car. But the insurance company
is subrogated to the right of the offended party as regards the damages.
(People vs. Reyes, C.A.,
50 O.G. 665)
Art. 107. Indemnification — What is included. — Indemnification of

consequential damages shall include not only those caused the injured party,
but also those suffered by his family or by a third person by reason of the
crime.
919
Art. 107 INDEMNIFICATION
Indemnity refers generally to crimes against persons;

reparation to crimes against property.
Indemnity is ordinarily the remedy granted to the victims of crimes
against persons; reparation, to the victims of crimes against property.
Example of damages caused the injured party.

In physical injuries, the injured party is entitled to be paid for whatever
he spent for the treatment of his wounds, doctor's fees, and for medicine, and
furthermore, his salary or wages unearned by him because of his inability to
work due to the injuries received by him, the damages sustained by him
because of the loss of a limb or the lessening of his earning capacity, etc.
(Guevara)
Indemnity for medical services still unpaid may be

recovered.
Since the offended party has not yet paid the doctor for medical services,
the court cannot sentence the accused to indemnify the offended party in the
amount of P500.00, because the offended party has not spent it. Action is,
however, reserved to him to recover it from the accused as soon as he shall
have paid it to the doctor. (People vs.
Granale, C.A., 50 O.G. 698)
But in the case of Araneta vs. Arreglado, 104 Phil. 529, 531, the Supreme
Court held that, taking into account the necessity and cost of corrective
measures to arrest the degenerative process taking place in the mandible and
restore the injured boy to a nearly normal condition, surgical intervention was
needed, for which the doctor's charges would amount to P3,000, while removal
of the scar on the face obviously demanded plastic surgery, the indemnity
granted by the trial court should be increased.
It will be noted that even if there was no actual payment of the doctor's
fee, the amount necessary to pay the doctor for surgical operation was taken
into account in awarding the damages.
Example of damages suffered by the family.

The chauffeur of defendant, through reckless imprudence, bumped a
carretela, resulting in the death of four passengers. Chauffeur was convicted.
920
Plaintiffs brought action against defendant on its subsidiary liability as

employer ofthe guilty chauffeur. Lower court sentenced defendant to pay, by
way of indemnity, P500.00 to each family ofthe victims.
Defendant contended that since there were only three families involved,
because two of the victims as brothers pertained to one family, it should pay
only f*l,500 instead of P2,000.
Held: The parents or heirs of the two deceased have suffered double
damages by reason ofthe death of their two children, with the consequence
that it is just to indemnify them in the same measure for the death of each.
(Copiaco vs. Luzon Brokerage Co., Inc., 66 Phil. 184,192)
Contributory negligence on the part of the offended party

reduces the civil liability of the offender.
Since the deceased was guilty of contributory negligence, this
circumstance reduces the civil liability of the offender in homicide through
reckless imprudence. (People vs. De Guia, C.A., G.R. No. 11769-R, Aug. 29,
1955)
When civil indemnity may be increased on appeal.

The civil indemnity may be increased only if it will not require an
aggravation of the decision in the criminal case on which it is based. In other
words, the accused may not, on appeal by the adverse party, be convicted of a
more serious offense or sentenced to a higher penalty to justify the increase in
the civil indemnity. (Heirs of Rillorta vs. Firme, No. L-54904, Jan. 29, 1988,
157 SCRA 518,
522)
Damages recoverable in case of death.

They are:
1. In recent cases, the Supreme Court has raised it to P50.000.00.
(Art. 2206, Civil Code; People vs. Ravelo, G.R. Nos. 78781-82,
Oct. 15, 1991, 202 SCRA 655, 673)
2. For the loss of the earning capacity of the deceased. (Art.
2206, par. [1], Civil Code)
921
3. Support in favor of a person to whom the deceased was obliged to

give, such person not being an heir of the deceased. (Art. 2206,
par. [2], Civil Code)
4. Moral damages for mental anguish in favor of spouse,
descendants and ascendants of the deceased. (Art. 2206, par. [3],
Civil Code)
5. Exemplary damages in certain cases. (Art. 2230, Civil Code)
Damages in crimes and quasi-delicts.

In crimes and quasi-delicts, the defendant shall be liable for all damages
which are the natural and probable consequences ofthe act or omission
complained of. It is not necessary that such damages have been foreseen or
could have reasonably been foreseen by the defendant. (Art. 2202, Civil Code)
In crimes, the damages to be adjudicated may be respectively increased
or lessened according to the aggravating or mitigating circumstances. (Art.
2204, Civil Code)
The amount of damages for death caused by a crime or quasidelict shall
be at least Fifty thousand pesos, even though there may have been mitigating
circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity
ofthe deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be assessed and awarded
by the court, unless the deceased on account of permanent
physical disability not caused by the defendant, had no earning
capacity at the time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir called to
the decedent's inheritance by the law of testate or intestate
succession, may demand support from the person causing the
death, for a period not exceeding five years, the exact duration to
be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages
for mental anguish by reason ofthe death of the deceased. (Art.
2206, Civil Code)
922
Civil indemnity for death caused by crime raised to

P50.000.00.
The civil indemnity for death caused by a crime has been raised from
f*30,000.00 to 50,000.00 in accordance with the Resolution ofthe Supreme
Court en banc dated August 30, 1990.
(People vs. De Guzman, G.R. No. 82002, Dec. 20, 1990, 192 SCRA
478,482; People vs. Ravelo, G.R. Nos. 78781-82, Oct. 15,1991, 202
SCRA 655, 673)
Civil indemnity for crimes qualified by circumstances

where the death penalty may be imposed.
The P50,000.00 awarded by the trial court as civil indemnity was
correctly increased by the Court of Appeals to P75,000.00 which is the amount
awarded if the crime is qualified by circumstances which warrant the
imposition ofthe death penalty. (People v. Barcena, G.R.
No. 168737, 482 SCRA 543, 561 [2006])
If the crime of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by the present
amended law, the indemnity ofthe victim shall be in the increased amount of
not less than P75,000. (People vs. Victor, 292
SCRA 186)
Effect of Rep. Act No. 9346 on civil indemnity for heinous

crimes.
It should be understood that the debarring ofthe death penalty through
Rep. Act No. 9346 did not correspondingly declassify those crimes previously
catalogued as "heinous." The amendatory effects of Rep. Act No. 9346 extend
only to the application of the death penalty but not to the definition or
classification of crimes. True, the penalties for heinous crimes have been
downgraded under the aegis of the new law. Still, what remains extant is the
recognition by law that such crimes, by their abhorrent nature, constitute a
special category by themselves. Accordingly, Rep. Act No. 9346 does not serve
as basis for the reduction of civil indemnity and other
damages that adhere to heinous crimes. (People vs. Bon, G.R. No.
166401, Oct. 30, 2006)
In the case of People vs. Salome, G.R. No. 169077, Aug. 31,
2006, the Supreme Court sustained the grant of Php75,000 as civil indemnity
to the victim, explaining "that while the new law prohibits the imposition of
923
the death penalty, the penalty provided for by law for a heinous offense is still
death and the offense is still heinous."
Civil indemnity for rape.

The award of f*50,000, as indemnity ex-delicto is mandatory upon the
finding of the fact of rape. (People vs. Maglente, 306 SCRA 546)
Civil indemnity for rape with homicide.

The civil indemnity for rape with homicide is now set at f*100,000.00.
(People vs. Robles, G.R. No. 124300, March 25, 1999, People vs. Bantilan, G.R.
No. 129286, Sept. 14, 1999)
Damages recoverable for rape with homicide.

In the case of People vs. Gumimba, G.R. No. 174056, Feb. 27,
2007, Appellant was ordered to indemnify the heirs of the victim in the
amount of P100,000.00 as civil indemnity, P75,000.00 as moral damages,
f*25,000.00 as temperate damages and f*100,000.00 as exemplary damages.
The amount of damages for death caused by a crime is

increased from time to time by the Supreme Court.
Art. 2206 ofthe Civil Code provides that:
"The amount of damages for death caused by a crime or quasi-
delict shall be at least three thousand pesos even though there may have
been mitigating circumstances x x x "
The amount of P3,000 referred to in the above article has already been
increased by the Supreme Court first, to P6,000.00 in People v.
Amansec, 80 Phil. 426, and then to P12,000.00 in the case of People
v. Pantoja, G.R. No. 18793, promulgated October 11,1968. As per the policy
adopted by the Court en banc on August 30, 1990, the amount of civil
indemnity for death caused by a crime has been increased to f*50,000.00.
(People vs. Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6, 1995)
The indemnity for death caused by a quasi-delict used to be pegged at
P3,000, based on Article 2206 of the Civil Code. However, the amount has
been gradually increased through the years because of the declining value of
our currency. (Pestano vs. Spouses Sumayang,
G.R. No. 139875, Dec. 4, 2000)
924
In quasi-delicts, the contributory negligence of the plaintiff shall reduce

the damages that he may recover. (Art. 2214, Civil Code)
No proof of pecuniary loss is necessary in order that moral, nominal,
temperate, liquidated or exemplary damages may be adjudicated. The
assessment of such damages, except liquidated ones, is left to the discretion of
the court, according to the circumstances of each case. (Art. 2216, Civil Code)
Indemnity for Lost Earnings.

The indemnity for the loss of the victim's earning capacity is computed
as follows:
Net earning capacity = Life expectancy x (Gross annual income
- living expenses)
Life expectancy is based on the American Expectancy Table of Mortality
and is computed using the formula: 2/3 x (80 - age of the deceased at the time
of death).
In the absence of proof, living expenses is estimated to be 50% ofthe
gross annual income.
(People vs. Lara, G.R. No. 171449, 23 Oct 2006, citing [People v. Dinamling,
G.R. No. 134605, 12 March 2002, 379 SCRA 107, 124])
Documentary Evidence should be presented to

substantiate a claim for loss of earning capacity.
The rule is that documentary evidence should be presented to
substantiate a claim for loss of earning capacity. By way of exception, damages
therefore may be awarded despite the absence of documentary evidence if
there is testimony that the victim was either (1) self-employed, earning less
than the minimum wage under current labor laws, and judicial notice is taken
ofthe fact that in the victim's line of work, no documentary evidence is
available; or (2) employed as a daily-wage worker earning less than the
minimum wage under current labor laws. (People vs. Mallari, G.R. No.
145993, 17 June 2003, 404 SCRA 170).
Computation of award for loss of earning capacity is

based on the life expectancy of the deceased.
In the computation of the award for loss of earning capacity of the
deceased, the life expectancy of the deceased's heirs is not factored in. The rule
925
is well-settled that the award of damages for death is computed on the basis of
the life expectancy ofthe deceased, and not the beneficiary. (Philippine
Airlines, Inc. v. Court of Appeals, G.R. No. 54470, May 8, 1990, 185 SCRA
110, 121, citing Davila v. Philippine
Airlines, No. L-28512, February 28, 1973, 49 SCRA 497)
Temperate damages may be awarded if income of victim is

not sufficiently proven.
In Pleno v. Court of Appeals, G.R. No. L-56505, 9 May 1988,161 SCRA
208, 224-225, the Supreme Court sustained the trial court's award of
r*200,000.00 as temperate damages in lieu of actual damages for loss of
earning capacity because the income of the victim was not sufficiently proven,
thus -
"The trial court based the amounts of damages awarded to the
petitioner on the following circumstances:
"As to the loss or impairment of earning capacity, there is no

doubt that Pleno is an ent[re]preneur and the founder of his own
corporation, the Mayon Ceramics Corporation. It appears also that he is
an industrious and resourceful person with several projects in line, and
were it not for the incident, might have pushed them through. On the
day of the incident, Pleno was driving homeward with geologist Longley
after an ocular inspection of the site of the Mayon Ceramics
Corporation. His actual income however has not been sufficiently
established so that this Court cannot award actual damages, but, an
award of temperate or moderate damages may still be made on loss or
impairment of earning capacity. That Pleno sustained a permanent
deformity due to a shortened left leg and that he also suffers from double
vision in his left eye is also established.
Because of this, he suffers from some inferiority complex and is no
longer active in business as well as in social life. In similar cases as in
Borromeo v. Manila Electric Railroad Co., 44 Phil 165; Coriage, et al. v.
LTB Co., et al., L-11037, Dec. 29, 1960, and in Araneta, et al. v.
Arreglado, et al., L-11394, Sept. 9,1958, the proper award of damages
were given."
Article 2224 of the Civil Code which provides that temperate or
moderate damages, which are more than nominal but less than compensatory
damages, may be recovered when the court finds that some pecuniary loss was
926
suffered but its amount cannot be proved with certainty, was applied in the
cases of People v. Singh, 412 Phil. 842,859 (2001), and People v. Almedilla, G.R.
No. 150590, 21 August 2003, 409 SCRA 428,433, to justify the award of
temperate damages in lieu of damages for loss of earning capacity which was
not substantiated by the required documentary proof.
In the Singh case, the Supreme Court awarded P200,000.00 by way of
temperate damages, in lieu of the f*5,760,000.00 awarded by the trial court as
damages for loss of earning capacity of the deceased since the prosecution did
not present sufficient evidence to prove the deceased's income.
In the Almedilla case, the Supreme Court did not compute damages for
loss of earning capacity on the basis of the widow's testimony that her
deceased husband was earning f*22,000.00 a month and f*10,000.00 from his
sideline. Instead, the widow was awarded r*25,000.00 as temperate damages.
Compensation for loss of earning capacity, not required

that the victim is gainfully employed.
To be compensated for loss of earning capacity, it is not necessary that
the victim, at the time of injury or death, is gainfully employed. Compensation
of this nature is awarded not for loss of earnings but for loss of capacity to
earn money. In Cariaga v. Laguna Tayabas Bus Company, No. L-11037,
December 29, 1960, 110 Phil 346, the Supreme Court awarded to the heirs
ofthe victim a sum representing loss of his earning capacity although he was
still a medical student at the time of injury. However, the award was not
without basis for the victim was then a fourth year medical student at a
reputable school; his scholastic record, which was presented at the trial,
justified an assumption that he would have been able to finish his course and
pass the board in due time; and a doctor, presented as witness, testified as to
the amount of income the victim would have earned had he finished his
medical studies. (People vs. Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6, 1995)
Moral Damages.
Moral damages may be recovered in the following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) xxx;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
927
(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) xxx;
(10) xxx.
The parents of the female seduced, abducted, raped, or abused, referred

to in No. 3 of this article, may also recover moral damages, x x x . (Art. 2219,
Civil Code)
Moral damages in rape.

In crimes of rape, moral damages may additionally be awarded to the
victim, without need for pleading or proof of the basis thereof. x x x
x x x (T)he fact that complainant has suffered the trauma of

mental, physical and psychological sufferings which constitute the bases for
moral damages are too obvious to still require the recital thereof at the trial by
the victim, since the court itself even assumes and acknowledges such agony on
her part as gauge of her credibility. What exists by necessary implication as
being ineludibly present need not go through a testimonial charade. (People
vs. Prades, 293 SCRA 411)
The amount of moral damages for rape has been set at P50.000.
(People vs. Prades, supra)
Exemplary Damages.
In criminal offenses, exemplary damages as a part of the civil liability
may be imposed when the crime was committed with one or more aggravating
circumstances. Such damages are separate and distinct from fines and shall be
paid to the offended party. (Art. 2230, Civil Code)
Exemplary damages may be given only when one or more aggravating
circumstances are alleged in the information and proved during the trial.
(People vs. Moran, Jr., G.R. No. 170849, March 7, 2007)
If a crime is committed with an aggravating circumstance, either
qualifying or generic, an award of r*25,000.00 as exemplary damages is
justified under Article 2230 of the New Civil Code. This kind of damage is
intended to serve as a deterrent to serious wrongdoings, and as a vindication
928
of undue sufferings and wanton invasion of the rights of an injured or a

punishment for those guilty of outrageous conduct. (People vs. Cabinan, G.R.
No. 176158, March 27, 2007)
Exemplary damages cannot be recovered as a matter of right; the court
will decide whether or not they should be adjudicated. (Art.
2233, Civil Code)
While the amount of the exemplary damages need not be proved, the
plaintiff must show that he is entitled to moral, temperate or compensatory
damages before the court may consider the question of whether or not
exemplary damages should be awarded. (Art. 2234,
Civil Code)
With respect to the exemplary damages awarded by the trial court, the
same are justified by the fact that the herein appellant without having been
issued by competent authority a license to drive a motor vehicle, wilfully
operated a BHP dump truck and drove it in a negligent and careless manner
as a result of which he hit a pedestrian who died from the injuries sustained by
him. (People vs. Medroso, Jr., No. L-37633, Jan. 31, 1975, 62 SCRA 245, 252)
Indemnification for consequential damages in homicide

thru reckless imprudence.
The appellant was guilty of reckless negligence, and that the incident at
bar was due to such negligence. The acts committed by him constitute the
crime of multiple homicide with less serious physical injuries, prescribed and
punished in Article 365, in relation with Article 48 ofthe Revised Penal Code.
The heirs of the deceased are entitled to indemnification for
consequential damages under Article 38 of the Revised Penal Code.
Hence, we find that —
(1) For the death of Crescenciano Barabag, who was around 70 years
old when he died, leaving as heirs a brother and several nephews
and nieces, an award of f*3,000 indemnity to his heirs should be
made. This amount would adequately indemnify his heirs for his
death, inasmuch as he had no occupation when he died and there is
no evidence as to the expenses incurred in his funeral.
(2) For the death of Juanito Camposo, who at the time of his death
was 26 years old and was engaged in farming and other activities
from which he derived an earning of about P120.00 a month,
leaving as heirs a widow and 5 minor children, an award of
P10,000.00 to his heirs should be made. This amount is deemed
929
adequate for the loss to said heirs of the deceased's earnings,

protection, guidance and company.
(3) For the death of Juan Camposo, who at the time he died was
engaged in farming and basket weaving from which he derived an
income of approximately f*l,000.00 a year, leaving as heirs a
widow and 11 children, f*10,000 would be adequate for the loss to
the latter of his earnings, protection, guidance and company.
(4) For the death of Jesus Butalid, who was about 12 years old and
only a student when he died, leaving as heirs a father and a
mother, an award of f*5,000.00 to the latter would be adequate to
compensate them for the loss of their son. (People vs. Biador, 55
O.G. 6384)
In a case where the deceased was crushed to death due to the
negligence of the bus driver of the Meralco, the factors considered
by the court in assessing the actual and moral damages were: (1)
the tender ages ofthe heirs at the time ofthe death ofthe deceased
— ranging from 5 to 13 years; (2) the age (39 years), life
expectancy (28.9 years), and state of health ofthe deceased; (3) his
earning capacity; (4) actual pecuniary losses; (5) the pain and
suffering of the deceased and his heirs; and (6) the financial
situation ofthe party liable.
At the time of his death, the deceased was vice-president of
Go Soc & Sons with an annual salary of r*3,000. Using this item as
the basis, the court awarded r*9,000 as damages equivalent to his
salary for 3 years, 1946-1948. The court found that if the deceased
were alive in 1949, his salary would be f*9,000 a year. Salaries for
four years in the total amount of P18,000 were allowed. The award
was considered conservative, because the court took into account
only 4 years out of his life expectancy of 28.9 years. The award of
r*5,000 as moral damages was held to be reasonable. (Alcantara
vs. Surro, 49 O.G. 2769)
Distinction between civil indemnity and moral damages.

Jurisprudence has elucidated that the award authorized by the criminal
law as civil indemnity ex-delicto for the offended party, in the amount
authorized by the prevailing judicial policy and aside from other proven
actual damages, is itself equivalent to actual or compensatory damages in civil
law. For that matter, the civil liability ex-delicto provided by the Revised Penal
930
Code, that is, restitution, reparation and indemnification, all corresponds to

actual or compensatory damages in the Civil Code, since the other damages
provided therein are moral, nominal, temperate or moderate, liquidated and
exemplary or corrective damages, which have altogether different concepts
and fundamentals. (People vs. Prades, 293 SCRA 411)
Actual damages must be proved.

Except as provided by law or by stipulation, one is entitled to an
adequate compensation for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or compensatory damages.
(Art. 2199, Civil Code)
Where the messenger of the Bureau of Forestry stole treasury warrants
which were not cashed, no pecuniary loss was suffered by the government.
Consequently, no indemnity can be properly imposed on the messenger who
was convicted. (People vs. Neria, 71 Phil. 506, 507)
In a robbery case, the indemnity for the goods taken by the accused
amounting to f*2,000 was eliminated, because there was no allegation in the
information as to the value ofthe goods taken. (People
vs. Tundia, G.R. L-2576, May 25, 1951, 89 Phil. 807 [Unrep.])
The indemnity cannot be assessed on speculation or guesswork.
(People vs. Dalena, CA-G.R. No. 11387-R, Oct. 25, 1954)
It is necessary for a party seeking the award of actual damages to
produce competent proof or the best evidence obtainable to justify such
award. Only substantiated and proven expenses, or those that appear to have
been genuinely incurred in connection with the death, wake or burial of the
victim shall be recognized in courts. The courts will not rely merely on
supposition or conjecture. (People vs. Jamiro, 279 SCRA 290)
Moral and exemplary damages do not require proof of pecuniary loss.

When the offended party was injured with multiple wounds inflicted
upon him by the accused, causing him to be hospitalized for 4 months, he is
entitled to moral damages which, like the exemplary damages, do not require
proof of pecuniary loss, as the assessment of such damages is left to the
discretion of the court. The amount of
P2,400 as moral damages is not excessive. (People vs. Gerodias, C.A., 51 O.G.
4614)
931
Moral damages in accident cases.

Moral damages could be recovered if a pedestrian was injured or killed
by a motor vehicle due to the negligence of its driver. (Alcantara vs. Surro, 93
Phil. 472,480; Castro vs. Aero Taxicab Co., 82 Phil. 359, 378)
But no moral damages can be claimed by an injured passenger in an

action against the bus owner based on culpa contractual. Said moral damages
are not allowed under Art. 2219 ofthe Civil Code. The negligent driver was the
one who caused the moral damages not the bus owner. (Cachero vs. Manila
Yellow Taxicab Co., 54 O.G. 6599)
Claim for moral damages does not determine jurisdiction

of court.
The claim for moral damages, as only an incident to a criminal case,
does not determine jurisdiction of the court. (People vs. Tejero,
C.A., 59 O.G. 739)
Temperate damages.
Under Article 2224 of the Civil Code, temperate or moderate damages
(which are more than nominal but less than compensatory damages) may be
recovered when the court finds that some pecuniary loss was suffered but its
amount cannot be proved with certainty. (Victory Liner, Inc. v. Gammad,
G.R. No. 159636, 25 November 2004)
Temperate damages, in the amount of P25,000.00, must be awarded
considering that it was established that the victim's family incurred expenses
for his hospitalization and burial. (People vs. Cabinan, G.R. No. 176158,
March 27, 2007, citing People vs. Abatayo,
G.R. No. 139456, July 7, 2004, 433 SCRA 562, 581)
Attorney's fees in criminal cases.

The recovery of attorney's fees in the concept of actual or compensatory
damage is allowed under the circumstances provided for in Article 2208 of the
Civil Code, one of which is when the court deems it just and equitable that
attorney's fees and expenses of litigation should be recovered. (People vs.
Bergante, et. al., 12036970, February 27, 1998)
Article 2208 of the Civil Code allows the recovery of attorney's fees in
cases when the defendant's act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest and in
932
any other case where the court deems it just and equitable that attorney's fees
and expenses of litigation should be recovered.
We affirm the award of P30.000 for attorney's fees made by the trial
court and the appellate court. Under Article 2208 of the Civil Code, attorney's
fees and expenses of litigation may be recovered when exemplary damages
have been awarded, as in this case. (Espana vs. People, G.R. No. 163351, June
21, 2005)
933
Art. 108 OBLIGATIONS OF HEIRS OF PERSON LIABLE
AND RIGHTS OF HEIRS OF PERSON INJURED
Civil liability not part of the punishment.

As the civil liability is not part of the punishment for the crime, the
action of the Supreme Court in affirming the judgment as to the guilt and
punishment of the accused and of reversing it as to the question of damages,
with instructions to try the civil branch ofthe case, does not constitute double
jeopardy. (U.S. vs. Heery, 25 Phil.
600,611)
Art. 108. Obligation to make restoration, reparation for damages, or

indemnification for consequential damages and action to demand the same —
Upon whom it devolves. — The obligation to make restoration or reparation
for damages and indemnification for consequential damages devolves u p o n
the heirs of the person liable.
The action to d e m a n d restoration, reparation and indemnification
likewise descends to the heirs of the person injured.
The heirs of the person liable has no obligation if

restoration is not possible and the deceased left no
property.
Thus, if A stole a ring which he later sold to an unknown person and
after A's conviction by final judgment, A died but he left no property to meet
the reparation, A's heirs cannot be made to repair the damage. But if A left
property, the heirs may be required to pay out ofthe proceeds of the property
of A. The same thing may be said with respect to indemnification.
Civil liability is possible only when the offender dies after

final judgment.
If the obligation is liquidated, that is, if the offender before his death was
condemned by final judgment to make restitution, reparation, or
indemnification, the offended party may make effective his claim by following
the procedure provided for in Rule 86 of the Rules of Court, that is, by filing a
copy of the judgment of conviction against the deceased with the court taking
cognizance of the testate or intestate proceedings.
SHARE OF EACH PERSON CIVILLY LIABLE Art. 109
934
If the death of the offender took place before any final judgment of
conviction was rendered .against him, the action for restitution, reparation, or
indemnification must necessarily be dismissed, in accordance with the
provisions of Art. 89, par. 1, of this Code. (Guevara)
Indemnity not possible in acquittal, right of heirs of

deceased.
The charge of murder was dismissed by the court because it was covered
by the amnesty proclamation. The court, however, allowed an indemnity to be
paid by the accused in favor of the heirs of the deceased.
Held: The case having been dismissed by the court, no judgment for
indemnity was proper in the criminal proceeding.
But the heirs of the deceased have a right to enforce the civil
responsibility ofthe accused in their favor in a civil action. (U.S. vs.
Madlangbayan, 2 Phil. 426, 428-429)
Art. 109. Share of each person civilly liable. — If there are two or more
persons civilly liable for a felony, the courts shall determine the amount for w
h i c h each must respond.
Illustration:
With respect to the civil liability, the indemnity of P6.000.00 awarded by
the Court should be apportioned as follows: the principal, Dungo-an Abao,
shall be liable primarily for P3,000.00; and the four accomplices (petitioners)
shall be liable primarily and in solidum among themselves for f*3,000.00. The
subsidiary liability of all of them shall be enforced in accordance with the
provisions of Article 110 of the Revised Penal Code. (Lumiguis vs. People,
G.R. No. L-20338, April 27, 1967, 19 SCRA 842, 847) The last sentence means
"that, in case of insolvency of the accomplices, the principal shall be
subsidiarily liable for their share of the indemnity; and in case of the
insolvency of the principal, the accomplices shall be subsidiarily liable, jointly
and severally, for the indemnity due from said principal." (People vs.
Cortes, 55 Phil. 143, 150)
Arts. 110-111 PREFERENCE IN PAYMENT
OBLIGATION TO MAKE RESTITUTION
Art. 110. Several and subsidiary liability of principals, accomplices, and

accessories of felony — Preference in payment. — Notwithstanding the
935
provisions of the next preceding article, the principals, accomplices, and
accessories, each within their respective class, shall be liable severally (in
solidum) among themselves for their quotas, and subsidiarily for those of the
other persons liable.
The subsidiary liability shall be enforced, first against the property of
the principals; next, a g a i n s t that of the accomplices; and lastly, against
that of the accessories.
Whenever the liability in solidum or the subsidiary liability has been
enforced, the person by w h o m payment has been made shall have a right of
action against the others for the amount of their respective shares.
Civil and subsidiary liabilities of principals.

When there are principals and accessories in the commission of the
crime of theft of large cattle valued at P200.00, the principals are solidarily
liable for PI50.00 which represents their quota and
subsidiarily liable for P50.00 representing the quota of their accessories.
(People vs. Tocbo, C.A., 45 O.G. 2571)
Civil and subsidiary liabilities of accomplices.

The principal is primarily liable for his own part of the indemnity. The
several accomplices are jointly and severally liable for the portion adjudged
against them and are subsidiarily liable for the portion of their principal in
case ofthe latter's insolvency. (People vs. Bantagan, 54 Phil. 834, 841)
Art. 111. Obligation to make restitution in a certain case. — Any person w

h o has participated gratuitously in the proceeds of a felony shall be bound to
m a k e restitution in an amount equivalent to the extent of such participation.
OBLIGATION TO MAKE RESTITUTION Art. Ill
Not criminally liable.

The person who participated gratuitously in the proceeds of a felony
referred to in this article is not criminally liable.
Must not be an accessory.
936
If the person who participated gratuitously in the proceeds ofthe felony
knew that the property came from an illegal source, he is an accessory and he
is not only civilly liable, but also criminally liable.
"Participated gratuitously."
This article has reference to a case of an innocent person who has
participated in the proceeds of a felony through the liberality of the offender.
In other words, he should not have paid for the stolen property which he
received from the offender.
If the innocent person paid for the article, because he bought it, Art. 105
applies.
Example of the application of Art. 111.

Suppose A after having stolen a diamond ring worth f*1,000, gives it to
B who, not knowing the illegal origin of same, accepts it. Later B sells the ring
for P500 to a foreigner, who immediately leaves the country. As the ring
cannot be returned, the remedy available to the offended party is to obtain
from the offender the reparation equivalent to the value of the ring. In case A
is insolvent, B shall be subsidiarily liable in the sum not exceeding P500 which
is the
gratuitous share in the commission ofthe crime. (Guevara)
The fortune of the innocent person must be augmented by

his participation in the proceeds of the crime.
It is necessary that his fortune has been augmented by his participation
in the proceeds of the crime. If he merely participated in the eating of the
stolen property, he is not obligated to make restitution, because his fortune
was not enhanced thereby. (1 Viada, Codigo Penal, 4th Ed., p. 550)
937
Chapter Three
EXTINCTION AND SURVIVAL OF CIVIL LIABILITY
Art. 112. Extinction of civil liability. — Civil liability established in

Articles 100,101,102, and 103 of this Code shall
be extinguished in the same m a n n e r as other obligations, in accordance
with the provisions of the Civil Law.
Civil liability is, therefore, extinguished:

(1) By payment or performance;
(2) By the loss of the thing due;
(3) By the condonation or remission ofthe debt;
(4) By the confusion or merger of the rights of creditor and debtor;
(5) By compensation;
(6) By novation.
Other causes of extinguishment of obligations, such as annulment,
rescission, fulfillment of a resolutory condition, and prescription, are governed
elsewhere in this Code. (Art. 1231, Civil Code)
Prescription is one of the modes of extinguishing obligations according
to Art. 1231 of the Civil Code. Where a civil action for damages due to an
alleged libel was brought more than one year after the cause of action accrued,
said action is barred by prescription. Art. 1147 of the Civil Code provides that
a civil action for defamation must be brought within one year. (Tejuco vs. E.R.
Squibb & Son Phil. Corp., 103 Phil. 594, 595)
938
EXTINCTION OF CIVIL LIABILITY Art. 112
Civil liability is extinguished by subsequent agreement

between the accused and the offended party.
On March 31, 1959, an agreement was entered into between appellant
and complainant whereunder the former agreed to refund to the latter, in
stated installments, the sum of $1,210.89, representing the overpayments made
for the account of Alfonso Marte, Jr. This agreement was partly executed
inasmuch as appellant had made the down payment of P170.00 thereon, as
well as seven (7) installments of P15.00 each or an aggregate amount of
P275.00. Although the criminal action remained unimpaired, this subsequent
agreement entered into between appellant and complainant was, in effect, a
novation of the civil liability of appellant. This was well within the right of the
parties to do inasmuch as the civil aspect of a crime may be compounded by
subsequent agreement or otherwise extinguished by the same causes for the
extinguishment of civil obligations under the Civil Law. (Articles 23 and 112,
Revised Penal Code) Since novation is a recognized mode of relatively
extinguishing a civil obligation, it follows that appellant's civil liability arising
from the crime was superseded by the novatory agreement. Complainant's
recourse is to enforce the agreement aforesaid. It has become improper to
make an award for civil indemnity at this instance.
(People vs. Tablante Vda. de Marte, C.A., 65 O.G. 1328, February
10, 1969)
Effect of condonation of civil liability.

The offended party in a criminal case executed an affidavit in which he
swore to the following: "That in conscience I hereby withdraw, condone,
dismiss and waive any and all claims, civil, criminal or administrative, that I
may have against Amancio Balite due to or by reason of the misunderstanding
which brought about the filing of the said criminal case." It was held that
affidavit of the offended party necessarily wiped out the civil indemnity of
P5,000.00 granted by the lower court.
Express condonation by the offended party has the effect of waiving
civil liability with regard to the interest ofthe injured party. For civil liability
arising from an offense is extinguished in the same manner as other
obligations, in accordance with the provision ofthe
civil law. (Balite vs. People, No. L-21475, Sept. 30, 1966, 18 SCRA 280,290)
939
Art. 113 OBLIGATION TO SATISFY CIVIL LIABILITY
Civil liability may arise from —

(1) Crime,
(2) Breach of contract (culpa contractual), or
(3) Tortious act (culpa aquiliana).
The first is governed by the Revised Penal Code. The second and the
third are governed by the Civil Code. The civil liability from any of those three
sources is extinguished by the same causes enumerated.
Offender is civilly liable even if stolen property is lost by

reason of force majeure.
Where it appears that a person has been deprived of the possession of
his property, the malefactor is responsible to the owner either (1) for the
return ofthe property or (2) for the payment of its value if it cannot be returned,
and this whether the property is lost or destroyed by the act of the malefactor
or that of any other person, or as a result of any other cause or causes. (U.S. vs.
Mambang, 36 Phil. 348, 349; See Art. 1268, Civil Code)
Thus, even if the cattle stolen by the accused died from rinderpest while
in the possession of the constabulary during the pendency of the trial, in case
of conviction, the accused are still liable civilly for the reasonable value of the
said cattle.
Art. 113. Obligation to satisfy civil liability. — Except in case of extinction

of his civil liability as provided in the next preceding article, the offender shall
continue to be obliged to satisfy the civil liability resulting from the crime
committed by him, notwithstanding the fact that he has served his sentence
consisting of deprivation of liberty or other rights, or has not been required to
serve the same by reason of amnesty, pardon, commutation of sentence or any
other reason.
"Notwithstanding the fact that he x x x has not been

required to serve the same (sentence) by reason of
amnesty, pardon, commutation of sentence, or any other
reason."
While amnesty wipes out all traces and vestiges of the crime,
940
OBLIGATION TO SATISFY CIVIL LIABILITY Art. 113
it does not extinguish the civil liability of the offender. (U.S. vs.
Madlangbayan, 2 Phil. 426, 428-429)
A pardon shall in no case exempt the culprit from the payment of the
civil indemnity imposed upon him by the sentence. (Art. 36, par. 2, Revised
Penal Code)
Application for probation affects only the criminal aspect

of the case.
Probation is denned as "a disposition under which a defendant, after
conviction and sentence, is released subject to conditions imposed by the Court
and to the supervision of a probation officer." (Sec. 3, P.D. No. 968 [Probation
Law]) The "conviction and sentence" clause of the statutory definition clearly
signifies that probation affects only the criminal aspect of the case. If under
Article 113 of the Revised Penal Code, the obligation to satisfy civil liability
continues notwithstanding service of sentence or nonservice due to amnesty,
pardon, commutation of sentence, or any other reason, there is no reason why
an application for probation should have an opposite effect insofar as
determination of civil liability is concerned. (Budlong vs. Apalisok, No. L-
60151, June 24, 1983, 122 SCRA 935, 938-939, 941)

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CRIMINAL The so-called common law

crimes, known in the United

and its amendments. CRIMINAL LAW IN

7. To have compulsory process issued to secure the attendance of

Rights of the accused which may be waived and rights

Characteristics of criminal law.

representatives who, by virtue of the customary law of nations,

As a general rule, the jurisdiction of the civil courts is not

Facts: Sweet was an employee of the U.S. Army in the Philippines.

Civil courts have concurrent jurisdiction with general

The Revised Penal Code or other penal law is not

"Section 1. Members of the Armed Forces of the Philippines and

The prosecution of an accused before a court-martial is a

Offenders accused of war crimes are triable by military

"War is not ended simply because hostilities have ceased. After

Exceptions to the general application of Criminal Law.

Treaties or treaty stipulations.

Law of preferential application.

It is a law to penalize acts which would impair the proper observance by

CRIMINAL LAW IN GENERAL

Persons exempt from the operation of our criminal laws by

(1) Sovereigns and other chiefs of state.

A consul is not entitled to the privileges and immunities of

Extent of Philippine territory for purposes of criminal law.

Exceptions to the territorial application of criminal law.

1. Should commit an offense while on a Philippine ship or airship;

Exceptions to the prospective application of criminal laws.

Different effects of repeal of penal law.

When the repeal is absolute the offense ceases to be

People vs. Tamayo

Facts: The accused was prosecuted for and convicted of a violation

But repeal of a penal law by its reenactment, even without a

Facts: The accused was charged with selling opium in violation of

When the repealing law fails to penalize the offense

People vs. Sindiong and Pastor

Facts: The accused was prosecuted for neglecting to make a return

A person erroneously accused and convicted under a

A new law which omits anything contained in the old law

Construction of penal laws.

People vs. Garcia

No person should be brought within the terms of criminal statutes who

People vs. Mangulabnan

Facts: During the robbery in a dwelling house, one of the culprits

The Spanish text of the same provision reads, as follows:

Other cases of incorrect translation of the Spanish text

(Act No. 3815, as amended)

History of the Revised Penal Code.

HISTORY OF THE REVISED PENAL CODE

of Justice, dated October 18, 1927, composed of Anacleto Diaz, as chairman,

The Revised Penal Code consists of two books.

The Revised Penal Code is based mainly on principles of

Two theories in Criminal Law.

Characteristics of the classical theory.

Characteristics of the positivist theory.

Art. 2. Application of its provisions. — Except as provided in the treaties

In what cases are the provisions of the Revised Penal

When any of these felonies is committed abroad by any of our

The crimes punishable in the Philippines under Art. 2 are

IMPORTANT WORDS AND PHRASES IN ART. 2

Crimes committed on board foreign merchant ship or